- Recently, a Supreme Court Judge noted that the right to dissent is essential for democracy and criticism of the executive, judiciary, bureaucracy, and the Armed Forces cannot be termed "anti-national"
- All mature democracies encourage people to disagree with the establishment, the government, and the party in power.
- The very reason these countries are referred to as mature democracies is that they value dissent. But throughout the World, a rising tide against dissent has been seen.
- In a recent incident in Myanmar, people who were protesting against the coup were shot using rubber pellets.
- The US embassy condemned this and said that “No one should be harmed for exercising the right to dissent”.
- In India also, such trends to subvert dissent have been seen. Most of the time, people who criticize are branded as ‘anti-national’, and sometimes even legal actions are taken.
- The recent case of Disha Ravi, a climate activist, who was arrested on charges of sedition, criminal conspiracy, spreading disaffection against the Indian state, and promoting enmity shows the reaction of the Government towards criticism. Recently, she was granted bail by Delhi High Court as the evidence was ‘scanty and sketchy’.
- Recently, not only the protesting farmers but also their supporters, including comedians and journalists, were charged with the Sedition.
What is Dissent?
- Dissent means “a strong difference of opinion on a particular subject, especially about an official suggestion or plan or a popular belief”.
- India’s constitutional democracy is predicated on the people’s right to call state power to account.
- The apex court said, Dissent is a safety valve for democracy. If this safety valve is not allowed to function then the pressure cooker will burst.
- Even at Household level also, there is no family without dissent between parents and the children, or between the siblings. A family which learns to deal with dissent rather than authoritatively dismissing it is a more harmonious family.
The Rich journey of Right to Dissent throughout Indian History
- Vedic spirituality as one of its core ideas postulates “Aano Bhadrah Krtavo Yantu Vishwatah (let noble thoughts come to us from all directions)”. Thus, from the Vedic period, it has been emphasized that views from all should be taken constructively.
- Vedic Brahmanism was then questioned by the Shramanas – Buddhists, Jainas, Ajivikas. It followed a long period of discussion about the ideas that came out of this questioning.
- Dissent and discussion could also be seen in the subsequent forms taken by Hinduism, as for instance by some of the bhakti saints, like Kabirdas, Ravidas, Guru Nanak, who openly criticized the then prevalent social conditions.
- The Bhakti and the Sufi movement was more rebellious in a way as it was galvanized by men and women belonging to lower castes.
- A major moment of dissent that helped to establish a free and democratic India was- Mahatma Gandhi’s satyagraha. The overwhelming involvement of the Indian people made it a defining moment of the independence struggle.
- Today, Social Media has emerged as a new platform for protest in the country. A hotbed for comments, information, unfiltered images and videos, such platforms not only incite social change from the public or leaders, but also affect public sentiments.
Right to Dissent granted through Constitutional Provisions
- The Preamble to the Constitution of India promises liberty of thought, expression, belief, faith, and worship.
- Clauses (a) to (c) of Article 19(1) in Part III (Fundamental Rights) promise:-
- freedom of speech and expression;
- Freedom to assemble peaceably and without arms;
- And the freedom to form associations or unions;
- These three freedoms are vehicles through which dissent can be expressed.
- However, Article 19(2) authorizes the government to impose reasonable restrictions on freedom of speech and expression in the interest of:
- the sovereignty and integrity of India,
- the security of the State,
- friendly relations with foreign States,
- public order,
- decency or morality or in relation to contempt of court,
- defamation or incitement to an offense
- In conclusion:
- a citizen has the right to say or write whatever s/he likes about the Government, or its measures, by way of criticism or comments,
- so long as she does not incite people to violence against the Government established by law or with the intention of creating public disorder.
Challenges to Right to Dissent
It can be wondered that if the constitution provides protection to the right to dissent, then why provisions like Sedition law and UAPA are often used to quell political dissent?
- An overly simplistic answer is: poor implementation of the laws and the authorities not following directions laid down by Courts
In this section, we shall look into the provisions of UAPA and Sedition law and other factors that pose a challenge to the right to dissent.
- In recent years, many activists, journalists, and students have been booked under the Unlawful Activities (Prevention) Act (UAPA) in different cases across the country. This has mainly been done to curb dissent.
Unlawful Activities Prevention Act
- UAPA was passed in 1967. It aims at the effective prevention of unlawful activities associations in India.
- Unlawful activity refers to any action taken by an individual or association intended to disrupt the territorial integrity and sovereignty of India.
- It has death penalty and life imprisonment as highest punishments.
- Under UAPA, both Indian and foreign nationals can be charged. It will be applicable to the offenders in the same manner, even if crime is committed on a foreign land, outside India.
- The 2004 amendment, added “terrorist act" to the list of offences to ban organisations for terrorist activities, under which 34 outfits were banned.
- Till 2004, “unlawful" activities referred to actions related to secession and cession of territory.
- In August, Parliament cleared the Unlawful Activities (Prevention) Amendment Bill, 2019 to designate individuals as terrorists on certain grounds provided in the Act.
- Under the provisions of the Act, investigation of cases can be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above. The Bill additionally empowers the officers of the National Investigation Agency (NIA), of the rank of Inspector or above, to investigate cases.
Need of the recent amendment to UAPA:
- The objective of the proposed amendments is to facilitate speedy investigation and prosecution of terrorist offences and designating an individual as a terrorist in line with international practices.
- The amendments will also allow the NIA probe cybercrimes and cases of human trafficking, sources aware of the proposal said Sunday.
- The strengthened law will help in uprooting terrorism from India.
- There are no changes to the bail or arrest provisions. Hence, it is evident that there will be no fundamental rights violation of anyone.
- The burden of proof is on the investigating agency and not on the accused.
- Criticism of the Act:
- The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
- The opposition voiced concerns about the amendments, saying the provisions were against the federal structure of the country enshrined in the Constitution of India.
- Designating an individual as a terrorist raises serious constitutional questions and has the potential for misuse. It has frequently been seen to curb dissent.
- An individual cannot be called a ‘terrorist’ prior to conviction in a court of law, It subverts the principle of “innocent until proven guilty”. A wrongful designation will cause irreparable damage to a person’s reputation, career and livelihood.
- As stated above Sedition Law has been widely used to curb dissent. The latest cases are related to Farmer protests.
- Section 124A of the Indian Penal Code, provides provision for Sedition.
- It defines Sedition as: “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which a fine may be added; or, with imprisonment which may extend to three years, to which a fine may be added; or, with fine.”
Historical Background of Sedition Law:
- Sedition laws were enacted in 17th century England when lawmakers believed that only good opinions of the government should survive, as bad opinions were detrimental to the government and monarchy.
- This sentiment (and law) was borrowed and inserted into the Section 124A of IPC in 1870, by the British.
- British used Sedition law to convict and sentence freedom fighters. It was first used to prosecute Bal Gangadhar Tilak in 1897.
Views by Supreme Court:
In 1962, the Supreme Court decided on the constitutionality of Section 124A in Kedar Nath Singh v State of Bihar.
- It upheld the constitutionality of sedition, but limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
- It distinguished these from “very strong speech” or the use of “vigorous words” strongly critical of the government.
- In 1995, the Supreme Court, in Balwant Singh v State of Punjab, held that mere sloganeering which evoked no public response did not amount to sedition.
Why should sedition law be repealed?
Sedition leads to a sort of unauthorised self-censorship, for it produces a chilling effect on free speech. It suppresses what every citizen ought to do in a democracy — raise questions, debate, disagree and challenge the government’s decisions. Sedition systematically destroys the soul of Gandhi’s philosophy, that is, right to dissent.
- Imposition of Section 144 of CrPC, 1973, to impose internet shutdowns have been seen as a common way to curb dissent. This can be particularly seen from the Kashmir Case, where for approximately one year there was no internet service.
- Social Media provides a platform to all to express their views. But, the targeted harassment of individuals who express dissent demonstrates that social media can not only provide a platform for the marginalized, but also facilitate their victimization.
Importance of Right to dissent
- Fundamental Right: The Right to protest peacefully is enshrined in the Indian Constitution, thus protecting it ensures that people get their licit rights.
- Historical Context: The background of the Indian Constitution is formed by its anti-colonial struggle, within which the seeds of a political public sphere and democratic constitution were sown.
- The Indian people fought hard and long to publicly express their views on colonial policies and laws and form a public opinion against them.
- Checking Abuse of Power: The Right to the association is required to form associations for political purposes — for instance, to collectively challenge government decisions and to even aim, peacefully and legally, to displace the government, to not merely check abuse of power but to wrest power.
- The Right to peaceably assemble allows political parties and citizenship bodies such as university-based student groups to question and object to acts of the government by demonstrations, agitations and public meetings, to launch sustained protest movements.
- People as Watchdogs: People act as watchdogs and constantly monitor governments' acts, which provides feedback to the governments about their policies and actions after which the concerned government, through consultation, meetings and discussion, recognizes and rectifies its mistakes.
- Supreme Court’s Observation: In Ramlila Maidan Incident v. Home Secretary, Union Of India & Ors. Case (2012), the Supreme Court had stated, “Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.”
Limitations needed on Right to Dissent
- Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the other citizens of the country. They have to co-exist in mutual respect.
- Thus, the constitution itself (in Article 19(2)) imposes certain limitations to the rights granted in Article 19(1).
- In the Shaheen Bagh Case, the Supreme Court has found the indefinite “occupation” of a public road by the protestors unacceptable. The judgment upheld the right to peaceful protest against the law but made it unequivocally clear that public ways and public spaces cannot be occupied, and that too indefinitely.
- The Supreme Court has over the years tried to maintain a balance between the right to protest and the government's power to strike down at the agitators.
- The ease of access to floating information on Social Media transcends the limitations of communication, and this sort of digital engagement can have detrimental effects, leading to fake news and partial judgment, thus misleading economic, social, or political goals. Thus a need to limit Social media has emerged.
Right to Dissent: Also promoted by International Institutions:
- Dissent involves the exercise of individual and collective rights of expression, association, assembly, and participation in public affairs.
- These freedoms encompass rights to receive and impart information, inspire debate, and influence decision-making about issues of public concern.
- Article 7 of the Declaration on Human Rights Defenders explicitly recognises that ‘Everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance’.
- Despite legal duties imposed on States to respect, protect and fulfil the rights to dissent and protest, these rights are routinely misunderstood and increasingly violated, with dissenters facing dire consequences including arrest, imprisonment, displacement, disappearance, and death.
Ethics of dissent:
The importance of dissent is not just that it is good for democracy. There is also a fundamental ethical principle involved in dissent
Any society which muzzles dissent is acting unethically.
- The first ethical principle is related to non-violence, a principle which is so integral to the unique Indian practices of dissent from ancient times to Gandhi and Ambedkar.
- The second ethical principle is that the worst off in a society have a greater right to dissent and protest even when the more privileged may not agree or sympathise with that dissent.
- Social dissent is a necessary voice for all those who are oppressed and are marginalised for various reasons. This is the only thing they have in a world which has denied them the basic dignity of a social life.
Buddha and Mahavira were dissenters first and philosophers next. Ramayana and Mahabharata are filled with stories of dissent.
Dissent is not just about criticism, it is also about showing new perspectives.
- Pro-Active Judiciary: A fair and effective adjudicative mechanism in constitutional matters can meaningfully prevent agitation on the street.
- Studies have shown that social movements could be less radical and less oppositional when the issues could be effectively sorted out by way of fair litigation means.
- Further, courts need to ensure timely agitation, because had there been a timely adjudication of the validity of the laws which was questioned by the process recognized by the law, the agitation on the street could have been probably reduced.
- Establishing Public Enquiry System: In the United Kingdom there exists a robust public inquiry system that processes ecological demands, integrates them into the political system, and minimizes radicalization of the movement arising out of exclusion and marginalization.
- Imbibing Civic Culture: On part of citizens, there is a need to imbibe a civic culture that is characterized by the acceptance of the authority of the state and a belief in participation in civic duties.
Dissent and democracy are often considered synonymous in a liberal-democratic social order. It is through open debate and discussion that the diversity of perceptions in a democracy gets exposed. Only through continuous interactions on critical issues does the real truth emerge. We owe our independence to Mahatma Gandhi, who had the courage and fortitude to express his dissent in a peaceful manner. In a progressive society, contrary views should be entertained. In the end, the power of dissent can be described through the poem of Rabindranath Tagore:-
Where the mind is without fear and the head is held high;
Where knowledge is free;
Where the world has not been broken up into fragments by narrow domestic walls;
Where words come out from the depth of truth; Where tireless striving stretches its arms towards perfection;
Where the clear stream of reason has not lost its way into the dreary desert sand of dead habit; Where the mind is led forward by thee into ever- widening thought and action
Into that heaven of freedom, my Father, let my country awake.