Katju'sessay os superb on legal and constitutional interpretation. The quotations all at one place are worth preserving for reference. His conclusions on untenability of sedition charges against JNU students and Amnesty are unexceptionable.
Where one may difer from him is the thesis he propounds that Azadi for Kashmir is justifiable only if it is proved to result in a higher standard of living for kashmiris. That is a problematic test and may run counter to the basic principles that he has quored with vigour.
Calling for Kashmir’s Azadi is Not Sedition, Even If it’s Illogical and Reactionary
Though I reject the slogan, merely demanding azadi will not be a crime unless one goes further and commits violence, or organises violence, or incites imminent violence.
A number of JNU students earlier this year and Amnesty India most recently have been charged with sedition under section 124A of the Indian Penal Code. The trigger in both cases was the mere shouting of slogans in favour of the independence of Kashmir.
Article 19(1)(a) of the Indian constitution guarantees freedom of speech to all citizens, though this is subject to reasonable restrictions mentioned in Article 19(2).
Although I personally disapprove of the slogan for azadi, in my opinion the shouting of such slogans per se, is no crime. So many people in India often shout such slogans. In the past, the advocates of Khalistan did so, as did Nagas and Mizos. In Kashmir today, tens of thousands of people are raising this slogan. In Scotland, many people demand separation from Great Britain, and many people in the French-speaking province of Quebec demand freedom from the rest of Canada. In a democracy, people should be allowed to let out steam, and the government should learn to not over-react.
Thus, in NOTO vs. US (1961), Justice Harlan of the US Supreme Court observed:
The mere teaching of communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend colour to the otherwise ambiguous theoretical material regarding communist party teaching.
In Terminiello vs. Chicago (1949), Justice Douglas of the US Supreme Court, speaking for the majority observed :
A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute,…is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest….There is no room under our constitution for a more restrictive view. For the alternative would lead to standardisation of ideas either by legislatures, courts, or dominant political or community groups.
In Abrams vs. US (1919), the defendants had been convicted under the Espionage Act of 1917, which made it a criminal offence to urge curtailment of production of the materials necessary for the war against Germany with intent to hinder the progress of the war. The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building in New York City. One leaflet, signed ‘revolutionists’, denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution. It advocated the cessation of the production of weapons to be used against Soviet Russia. Justice Holmes of the US Supreme Court, in his dissenting judgment in that case wrote :
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wish to sweep away all opposition. But when men have realised that time has upset many fighting faiths, they may come to believe that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the government that the 1st Amendment left the common law as to seditious libel in force. History seems to me against the notion.
In Gitlow vs. New York (1925), the appellant, a member of the left wing of the Socialist Party, had been convicted for printing and distributing copies of a manifesto which called for the “overthrow of the state by class action of the proletariat in any form, seizure of power and suppression of the bourgeoisie.” In his dissenting judgment in that case Justice Holmes said:
It is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared Gitlow’s views. It is said that the manifesto is more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief, and if believed is acted on, unless some other belief outweighs it. Whatever may be thought of the discourse before us, it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.
In Whitney vs. California (1927), Justice Brandeis, the celebrated judge of the US Supreme Court observed:
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of free speech to free men from the bondage of irrational fears.
In Joint Anti-Fascist Refugee Committee vs. McGrath (1951), Justice Douglas in his concurring judgment observed:
In days of great tension when feelings run high, it is a temptation to take short cuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within.
All the above decisions of the US Supreme Court have been referred to with approval in the decision of the Indian Supreme Court in Sri Indra Das vs. State of Assam (2011).
In Romesh Thapar vs. State of Madras, Patanjali Shastri, the chief justice, observed:
Freedom of speech lies at the foundation of democracy, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.
In Union of India vs. Association for Democratic Reforms, the Supreme Court observed:
One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions.
In 1954, Ram Manohar Lohia, then general secretary of the Praja Socialist Party was arrested by the Uttar Pradesh government for leading protests around the government policy that had increased irrigation rates for water supplies for canals to cultivators. He was prosecuted under the UP Special Powers Act 1942, which criminalised instigating people to refuse to pay taxes. Supreme Court ruled in favour of Lohia, holding that the state government’s action was in violation of Article 19(1)(a) (Superintendent Central Prison vs. Ram Manohar Lohia). The court held that for an action to be restricted under Article 19(2), there needs to be a proximate and reasonable connection or nexus between the speech in question and public order. The court said:
In an attempt to indicate its wide sweep, we pointed out that any instigation by word or visible representation not to pay or defer payment of any exaction or even contractual dues to government, authority or a land owner is made an offence. Even innocuous speeches are prohibited by threat of punishment. There is no proximate or even foreseeable connection between such instigation and the public order sought to be protected under section (sic). We cannot accept the argument of the learned advocate general that instigation of a single individual not to pay tax or dues is a spark, which may in the long run ignite a revolutionary movement destroying public order. We can only say that fundamental rights cannot be controlled on such hypothetical and imaginary considerations. It is said that in a democratic set up there is no scope for agitational approach and that if a law is bad, the only course is to get it modified by democratic process and that any instigation to break the law is in itself a disturbance of the public order. If this argument without obvious limitations were accepted, it would destroy the right to freedom of speech, which is the very foundation of democratic way of life. Unless there is a proximate connection between the instigation and the public order, the restriction, in our view, is neither reasonable nor is it in the interest of public order. In this view, we must strike down section 3 of the Act as infringing the fundamental right guaranteed under Article 19(1)(a) of the constitution.The court here firmly recognises the right to agitate and protest, while at the same time safeguarding the right to freedom of speech and expression by laying down the bar for when speech can be limited in the interests of public order.
In Kedar Nath Singh vs. State of Bihar, a constitution bench of the India Supreme Court observed that section 124A of the IPC was made in 1870 during British rule, but after the Constitution of India came into force in 1950, it must be given a narrow, and not literal interpretation, otherwise it will become unconstitutional.
For progress there must be freedom to think, freedom to discuss, freedom to express one’s opinions (even if distasteful to the majority), freedom to criticise and freedom to dissent. An idea may be disagreeable to the conservative majority, yet it should be permitted to be expressed.
As pointed out by John Stuart Mill in his celebrated essay On Liberty:
All progress, advancement of knowledge and progressive change and improvement of old ways of thinking, and the consequent old behaviour-patterns, habits, customs and traditions can come about only from free individual dissents and dissentions, innovations, etc., which are at first usually resisted by inert or conservative people (who are usually the vast majority), and by a free competition between the old and new ideas. In any society ordinarily the majority shares old thoughts and traditions, and there is a strong tendency to insist on conformity and collective unity or solidarity, to repress dissents and innovations, and to tolerate only what the majority agree with. This inevitably works to prevent any progress and to thwart the creative impulses of the more creative and original minds. Extensive freedom to dissent and innovate, in all spheres of life, activity, culture and thought in all directions, including expressing ideas initially thought strange and often disliked by the conservative tradition-bound majority are indispensable for progress.The intellectually advanced and creative individuals are often in the minority, and are regarded as non-conforming eccentrics and deviants, and there is often a tendency to suppress them. This is why liberal democracy, i.e., majority rule but qualified and limited by firm protection of minorities, and individual rights and liberties, even as against the governing majority, is essential for progress. The majority often consists of mediocre persons who wish to continue in the old ways of thinking and practices. Hence the liberties and rights have to be guaranteed to the often powerless tiny minorities and lone individuals so that progress can take place.
In view of the above, I submit that mere demands and slogans for azadi, etc., will not be crimes unless one goes further and commits violence, or organises violence, or incites imminent violence. The JNU students and Amnesty India neither committed, nor organised violence, nor called for immediate resort to arms. Hence, in my opinion, they committed no crime, and the charges against them should be dropped.
Not illegal but illogical
That having been said, I totally disapprove of the demand for azadi for Kashmir or any part of India. The test of every system is primarily whether or not it raises the standard of living of the people. Azadi can only be a means to an end, not an end in itself. The end must be raising the standard of living of Kashmiris. If it can be demonstrated that azadi results in raised standards of living for the Kashmiri people, i.e., if it could create large scale employment for the Kashmiri youth, provide healthcare for them, alleviate poverty, provide nutritious food, etc., I will support the demand. But it is certain that the azadi being demanded by many Kashmiris will lower the standard of their living, far from raising it. Azadi for Kashmir will result in Islamic revivalism, imposition of Sharia law in Kashmir, etc., which will be disastrous for Kashmiris as it will drive Kashmir into the dark middle ages. The separatist leader and chairman of the Hurriyat conference, Syed Ali Shah Geelani’s mentor was Abdul A’la Maududi, who propagated Islamic revivalism, and strongly opposed secularism and womens’ emancipation.
Geelani’s ideology, and that of other separatists, appears to be the same. Otherwise why do they not disclose what is their plan for raising the standard of living for the people of Kashmir, assuming azadi is achieved? They are totally and deliberately silent about that. Burhan Wani was turned into a hero by many Kashmiris. But to my mind he was only a pawn being used by certain vested interests. What was Burhan Wani’s ideology? Was it Islamic fundamentalism? What were his plans for raising the standard of living of Kashmiris once azadi is achieved? Did he even think about this? Umar Khalid of JNU compared Burhan Wani with Che Guevara. But Guevara had an ideology and a plan (whether one agrees with it or not). How can the two be compared? Kashmir is too small and economically backward to survive as an independent state. So azadi, even if it is achieved, will soon thereafter result in Kashmir coming under the Pakistani military jackboot and imposition of the feudal, outdated Sharia law and Wahabism.
It is true that there is communalism in the rest of India too, but it is nothing compared to what is happening in Pakistan. Ahmediyas, Shias, Hindus, Christians, etc., are regularly killed there by the religious bigots. Recently, a Hindu doctor of Karachi was killed. What was his fault? That he was a Hindu. Blasphemy laws are applied to victimise innocent minorities. Earlier this month, about 70 people were killed and over 100 injured in a bomb blast in a hospital in Quetta, many of them lawyers and journalists. Journalists who write independently are regularly killed. People are afraid of speaking out openly in Pakistan. Do Kashmiris really want to be a part of that society? If they do not, then the demand for azadi is totally reactionary and illogical.