Absence of Dissent Will Turn Democracy into a Police State: Justice Deepak Gupta

New Delhi: Delivering a speech on ‘Law of Sedition in India and Freedom of Expression’ at a lawyers’ workshop on September 7, Supreme Court judge, Justice Deepak Gupta criticised the rising misuse of the sedition law in the country. The workshop was organised by the Praleen Public Charitable Trust in Ahmedabad, Gujarat.

Justice Gupta began his speech by talking about the right to freedom of expression which is enshrined in the Indian Constitution as a fundamental right under Article 19(1)(a), and its importance in the interpretation of legal provisions including the law of sedition.

He said, “This right is a well-recognised right which includes within its ambit the right of freedom of press, the right to know, right to privacy, etc. Article 21 prescribes that no person shall be deprived of his life or personal liberty except according to the procedure prescribed by law. The word life has been given an expansive meaning and has been now recognised to mean to live a life of decency and not a mere animal existence.”

He also said that the Constitution not just guarantees the right to freedom of expression but, also recognises the right to dissent. Highlighting the importance of this right, especially in a secular and democratic country like India, he said, “As long as a person does not break the law or encourage strife, he has a right to differ from every other citizen and those in power and propagate what he believes is his belief. The judgment of H. R. Khanna, J. in the A.D.M. Jabalpur case, is a shining example of a dissent which is much more valuable than the opinion of the majority.”

Another important aspect of a democracy, he said, is that “the citizens should have no fear of the government. They should not be scared of expressing views which may not be liked by those in power. No doubt, the views must be expressed in a civilised manner without inciting violence but mere expression of such views cannot be a crime and should not be held against the citizens.”

In this context, he talked about the law of sedition, which is actually a colonial law. He said that the law was introduced to repress the freedom struggle waged by the people of this country against the British imperial rule. Citing an example of how this law was used by the British government, Gupta said, “At this stage, I would also like to refer to the Father of the nation Mahatma Gandhi, who in this city of Ahmedabad was charged with sedition. Appearing before Sessions Judge Broomfield, Mahatma Gandhi while dealing with the word ‘disaffection’ had this to say, “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.”

This, he said, sums up that mere criticism without incitement to violence would not amount to sedition. Slamming the current government’s method of dealing with dissent, he said that nowadays, the law of sedition is more often abused and misused. The people who criticise those in power are arrested by police officials on the asking of those in power and even if a person may get bail the next day from the court, he has suffered the ignominy of being sent to jail.

Citing an example of the misuse of sedition law, he said, “In 2011, the Mumbai police arrested Asim Trivedi, a cartoonist for circulating a cartoon which allegedly poked fun at the Constitution and the National Emblem in an anti- corruption rally organised by Anna Hazare. This led to the Bombay High Court issuing directions to the police that before arresting a person on charges of sedition the senior officials should be consulted. “

Talking about the increasingly common trend of tagging someone as an anti-national, he said, “There is no healthy discussion; there is no advocacy on principles and issues. There are only shouting and slanging matches. Unfortunately, the common refrain is either you agree with me or you are my enemy, or worse, an enemy of the nation, an anti-nationalist.”

He added, “Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed sedition. In case we attempt to stifle criticism of the institutions whether it be the legislature, the executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy and this the founding fathers never expected this country to be.”

Justice Gupta stressed that “the law laid down in Kedar Nath Singh vs State of Bihar, being the law of the land has to be applied in letter and spirit and unless the actions lead to creation of public disorder, disturbance of law and order or incitement to violence, no action should be taken. In fact, in my view, the law of sedition needs to be toned down if not abolished and the least which the Government can do is to make it a non-cognisable offence so that the persons are not arrested at the drop of a hat.”

Highlighting the necessity of the government to respect the rights of its citizens as enshrined in the Constitution, he concluded his speech by saying, “To progress in the field of human rights and be a shining example of an effective, vibrant democracy then the voice of the people can never be stifled.”