By Karan Thapar
Do citizens of India have the right to peacefully and non-violently call for azaadi for Kashmir and Bastar or advocate separation and division? Most lawyers will say they do. The BJP insists they don’t. In a recent speech in London Arun Jaitley added: “Free speech does not permit you to assault the sovereignty of the country.” I’m not a lawyer but my research leads to a very interesting conclusion.
Article 19 (1) of the constitution states: “All citizens shall have the right to freedom of speech and expression.” Article 19 (2) states: “Nothing (can) … prevent the state from making any law … (to) impose reasonable restrictions … in the interests of the sovereignty and integrity of India.”
Two things follow. Article 19 (2) does permit a restriction on freedom of speech on grounds of sovereignty but it’s an enabling provision. It’s not the law itself. A law along these lines needs to be promulgated by parliament to put Article 19 (2) into effect.
Now, does such a law exist? Until 1962 the penal code provision for sedition (Section 124A) was such a law. However, in the Kedar Nath Singh judgement the Supreme Court read it down. It now only applies if there is actual incitement to violence.
In 1995, in the Balwant Singh case, when the Supreme Court ruled that ‘Khalistan Zindabad’ is not seditious, it upheld the 1962 ruling. More recently, in September 2016 the Supreme Court explicitly reaffirmed this judgement: “We are of the considered opinion that the authorities while dealing with offences under Section 124A of the Indian Penal Code shall be guided by the principles laid down by the constitution bench in Kedar Nath Singh versus State of Bihar.”
So the situation that prevails today is simple. The constitution permits the government to make a law to restrict freedom of speech in the interest of the sovereignty and integrity of India but the law that does that only applies if there is incitement to violence. If the government wishes to criminalize peaceful non-violent calls for azaadi it needs to pass a specific law to do so. Article 19 (2) is not sufficient.
Will the BJP pass such a law? I hope not. I have two reasons for saying so.
Perhaps in the immediate years after independence India was a fragile nation whose future was uncertain and so even peaceful calls advocating separation or division were a threat that could not be permitted. That’s not the case any longer. Today we’re resilient enough to withstand the rhetoric of college students. Indeed their liberty to say what they want should be proud proof of our strength.
Second, as far back as 1962, in his maiden Rajya Sabha speech, Annadurai said: “Dravidians demand the right of self-determination … we want a separate country for southern India.” If his words were laughed off rather than seen as a threat 55 years ago surely similar calls should be treated similarly today?
Now I don’t mean to suggest calls for azaadi are not offensive and distasteful. But free speech includes the right to offend. A law to protect against that would diminish us.
Let’s not in the name of nationalism commit that blunder. Indeed, because we’re confident of our nationhood and its resilience let’s permit dissidents to question it. We know they’re wrong but they have a right to be.