by Adithya Reddy
Fali Nariman is correct when he says expressing anti-national views is not sedition under law. He is also correct in saying that it may not even be a criminal offence, even though Sec. 2(i) of the Unlawful Activities Prevention Act defines “unlawful activity” to mean any activity which “supports…..the cession of a part of the territory of India or the secession of a part.” This is because our Supreme Court has slavishly followed the American approach in holding that speech has to lead to imminent harm or violence to be restricted - an approach championed, ironically, by the late Justice Anton Scalia to protect racist speeches and followed by the US Supreme Court recently in Snyder Vs. Phelps to protect outlandishly homophobic views. Therefore for a person to be punishable for supporting secession in India it must be shown that his support actually incites violence for secession. This interpretation goes against the plain terms of our Constitution’s Article 19(2) (as amended in 1963 during the height of the Dravidian secessionist movement), which restricts any speech in the “interests of the sovereignty and integrity of India”. It does not require such speech to actually incite or cause violence. The degree of punishment and procedures for restriction can definitely vary between a simple speech against India’s integrity and one that has the potential to provoke violence. But to say Article 19(2) does not permit the State to prohibit the former doesn't flow from the plain terms of the provision and cannot certainly be our constitutional mandate.
The American approach to free speech has been the cause of serious discontent, interestingly, within the campuses of some of its most acclaimed educational institutions. Recently in response to suggestions of free speech activists that students in Yale University must be free to wear even costumes offensive to African-Americans and native Indians to their halloween party, many students wrote a open letter that reads, “we are not asking to be coddled… [We] simply ask that our existences not be invalidated on campus. This is us asking for basic respect of our cultures and our livelihoods.” This confrontation spiralled into a major controversy over racism in the University. In Snyder Vs. Phelps 8 out of the 9 Supreme Court judges upheld the right of members of a Church to hurl anti-homosexuality insults against the father of a US marine who was killed in the Iraq war, that too at the later’s funeral. The majority judges refused to look into the victim’s claims of emotional harm caused by such words. The judgment however has gained a lot of attention for the powerful dissent by one of its judges. Justice Samuel Alito refused to toe the majority line holding that "in order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like the petitioner.” In insisting that speech has to cause physical harm or violence in order to be illegal the American courts and our Supreme Court have ignored that speech can be extremely distressing and hurtful to an individual’s emotional wellbeing and dignity. It is not surprising that discriminatory practices like racism and homophobia continue to fester in the US not too far away from mainstream ideas and there certainly appears to be no national consensus against them. After all, if they are allowed in people’s speeches they are bound to grow in their minds. The Indian national consensus against secession of territory is well represented in the sixteenth Constitutional amendment amending Article 19(2) as set out above. It is also reflected by the absolute lack of electoral support that secessionist politics has received in any part of the country. This consensus cannot be threatened by public expression of views in support of terrorism-induced separatist movements. Especially when it is indisputable that these movements are aided by enemy states and kept in check for decades by the blood and sacrifices of our armed forces.
In international law, territorial integrity is a moral and legal right of a democratic nation that ensures effective safeguards for minority protection and a functioning judiciary. To support secession in such a nation would mean doing violence to democracy and its concomitant freedoms. National integrity has to be an absolute value for every Indian. The parliament must make a separate law prohibiting views against national integrity and our Supreme Court must revisit its position on what is permissible speech. Have a specific law on secessionism/ separatism will prevent criticism regarding using vague and indefinite grounds such as sedition for punishing people. A good international example to follow would be the national consensus in many European countries against Holocaust denials. European courts and the UNHRC have upheld laws prohibiting anti-semitic views by interpreting free speech to exclude the right to propagate views against others’ freedoms. On 13 July 1990, the French legislature passed the"Gayssot Act", which amended the law on the Freedom of the Press of 1881 to make it an offence to contest the existence of the category of crimes against humanity as defined in the London Charter of 8 August 1945, on the basis of which Nazi leaders were tried and convicted by the International Military Tribunal at Nuremberg in 1945-1946. A University Professor challenged this law as being violative of his freedom of expression under International covenant on Civil and Political Rights. The UNHRC rejected his case. The judges of the committee (which included India’s Justice P. Bhagwati) held that ‘incitement’ by speech need not be incitement of immediate physical violence but could also mean spreading hostility in a historical or social context. In the words of the committee- “It is implicit in the obligation placed on States parties…. to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence… However, there may be circumstances in which the right of a person to be free from incitement to discrimination on grounds of race, religion or national origins cannot be fully protected by a narrow, explicit law on incitement…This is the case where, in a particular social and historical context, statements that do not meet the strict legal criteria of incitement can be shown to constitute part of a pattern of incitement against a given racial, religious or national group, or where those interested in spreading hostility and hatred adopt sophisticated forms of speech that are not punishable under the law against racial incitement, even though their effect may be as pernicious as explicit incitement, if not more so.” Similarly the European Court of Human Rights in Garaudy Vs. France held that holocaust denial claims “undermine the values on which the fight against racism and anti-semitism are based and constitutes a serious threat to public order. Such acts are incompatible with democracy and human rights because they infringe the rights of others. Its proponents indisputably have designs that fall into the category of aims prohibited by the…convention.” Holocaust denial in Europe is considered to be an affront to the ‘ethical pact’ forged by nations expressing unconditional disapproval of the dynamics that dragged Europe into the horrors of war.
In the Indian context, one must not forget that injury continues to be etched in minds of millions of survivors of Partition and victims of separatist terrorism in J&K and other states. Overwhelming majority of Indians still follow our freedom fighters in treating India with devotion. Bankim Chandra Chattopadhyay’s hymn to the ‘Mother’ still depicts the dominant imagery of the nation for the average Indian. The right to tell these people that the country should be dismembered once more or that it does not even exist, cannot be protected under the Constitution. It is a provocation and insult to Indians who take pride in their national identity. These views mock the sacrifices of our armed forces and serve no public interest of any sort. National unity should be our unanimous resolve, both to ensure that history doesn't repeat and to answer enemy states that have an eye on our territory. If Kanhaiya Kumar did not raise anti-India slogans our Courts will ensure he is set free. But to protect these freedoms and the Constitution that guarantees them it is absolutely essential that persons who raised such slogans are found and punished. (The author is a practicing lawyer in the Madras High Court)