Tuesday, 26 May 2020

Violating: Freedom of Expression

Updated: February 26, 2016 2:30 pm

Even as Siachen braveheart Lance Naik Hanumanthappa Koppad was battling for life at an Army hospital in New Delhi, a bunch of students from the Jawaharlal Nehru University, was busy chanting anti-national slogans such as Kashmir ki azadi tak jung chalegi, Bharat ki barbadi tak jung chalegi. Nothing could have been more ironical than this. Jawaharlal Nehru University, known for its quality research scholars and bureaucrats, has been in news for quite some time, albeit for wrong reasons. This university which has been known for its unique culture of harbouring various ideologies under its ambit has been occupied by some anti-national elements lately. These elements, who were behaving as a sleeper cell, have suddenly become active in last few years. The incident which happened on February 9 in JNU cannot be seen in isolation. These elements have been active on the campus for more than a decade. As being part of the university, this author has been witness to many incidents, which were not only anti- national but also sadistic in nature. The happiness which these elements had shown on killing of 74 jawans of Central Reserve Police Force (CRPF) in Dantewada in 2009, shows the appalling nature of these elements. Jawaharlal Nehru University has been Left dominated ever since its inception, but earlier the culture of debate and agitations was there held for the betterment of the nation and the society as a whole. Of late, the institution, has been captured by the anti-national elements who harbour the very intention of destroying this country from within.

People may claim that the police crackdown on students of Jawaharlal Nehru University, who were raising anti-India slogans and eulogising the hanged terrorist Afzal Guru, is an Emergency-like situation, but in reality the action came in a timely manner when students-activists had crossed all limits of free speech by hailing the Parliament attack mastermind and calling for the destruction of India. Kanhaiya Kumar, President of the Jawaharlal Nehru University Students Unions (JNUSU), who was arrested by the police, has claimed innocence, saying that he did not raise the slogans and that he was completely committed to the integrity and sovereignty of India and believes in the Constitution of India. But he was apparently part of the group of students on the university campus, which was engaged in anti-national activity. He cannot, thus, escape accountability. He will have every opportunity to make his point before the judiciary. But the issue here is not the fate that awaits this case, it’s the steady growth of anti-national activities that have been flourishing over the years in various campuses and social arena under the guise of freedom of expression the Constitution of India ensures. This tendency has to do with the complacency of previous governments at the Centre who looked on at such atrocious activities with benign regard.

Meanwhile, the government has rightly taken a strong view of the anti-India sloganeering at JNU. It is one thing to criticise the state or debate the effectiveness of its organs and agents, another thing to celebrate a convicted terrorist who has the blood of innocents on his hand, and quite another to call for the destruction of the nation altogether. At some point, the line has to be drawn, and the Union Government has done well to do so in a firm and determined manner. It is now imperative that this case be taken to its logical conclusion and all those who participated in the anti-India sloganeering be suitably punished. The JNU administration issued a statement as to what transpired on or before February 9, and said that those who organised the event may have been “fringe elements” who abused the university’s culture of debate and free speech to push their message of divisiveness. Even if we consider this statement, the question remains: Why didn’t the administration take action earlier? In fact, one must go beyond this incident and ask the administration why did it allow one of India’s most prestigious universities to become a den of ultra-Left politics over the years? Even when compared to some of the other universities in the country where campus politics is an integral part of student life like Allahabad University, JNU behaves likes Achilles heel by allowing a platform to those whose views go against the Constitution of India. Even if this is only a motley group of students pushing an sinister ideology, they are loud and vocal enough to establish themselves as the voice of JNU. This has damaged the university’s reputation.

Law on free speech in India

Whatever anti-national activities are done on the campus of Jawaharlal Nehru University, it is done in the disguise of freedom of expression. But one must remember, our Constitution too, like American Constitution provides a system of check and balance, albeit discreetly.

One must be aware of few facts regarding the freedom of expression guaranteed by the Constitution of India. Article 19(1)(a) of the Constitution guarantees freedom of speech and expression to all citizens. It says, “All citizens shall have the right to freedom of speech and expression.” But this freedom is not absolute and can be subjected to reasonable restrictions as mentioned in Article 19(2) of the Constitution. The purpose was two-fold. First, it protects existing laws restricting free speech. Second, it authorises the State to make laws imposing reasonable restrictions on the right given under Article 19(1)(a) in the interests of the sovereignty and integrity of India, 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 offence. Ironically, these restrictions were added to the constitution in May 1951 by the very first amendment helmed by Jawaharlal Nehru-considered to be a liberal. Since then Article 19(2) has been used to justify a host of laws — including those on sedition, defamation, contempt of court, obscenity, official secrets, hate speech etc- that impinge on free speech.

Law on sedition

Another point of contention in this whole issue is of slapping of sedition charge on leader of these students. Sedition was not a part of the original Indian Penal Code (IPC) that came into force in 1862. It was added to the IPC in 1870 and its scope and ambit was broadened in 1898 to deal with the freedom movement that was gaining ground.

According to Section 124A, a person commits the crime of sedition if s/he brings or attempts to bring   hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India. It can be by words, either spoken or written, or by signs, or by visible representation, or otherwise. The maximum punishment for sedition is imprisonment for life. Explanation 1 to Section 124A clarifies that the expression “disaffection” includes disloyalty and all feelings of enmity.

SC’s interpretation

After the commencement of the Constitution in 1950, some of the high courts had declared Section 124A of IPC unconstitutional as being violative of Article 19(1)(1)(a). However, the Supreme Court upheld its validity in Kedar Nath Singh versus State of Bihar in 1962.

A five-judge Constitution Bench headed by then Chief Justice of India BP Sinha said though the section imposed restrictions on the fundamental right to freedom of speech and expression, the restrictions were in the interest of public order and were within the ambit of permissible legislative interference with the fundamental right. The law struck the correct balance between individual fundamental rights and the interest of public order, the SC said.

The organisers of the event at JNU have made much out of the right to freedom of speech and expression. Such freedom is indeed guaranteed by the Constitution of India — the country immoderately abused in the slogans raised on the occasion. But Article 19(1) giving freedom in matter of speech, assembling, forming unions and moving throughout India also imposes reasonable restrictions on that right by Article 19(2). Hence, nothing challenging the sovereignty and integrity of the country and that is prejudicial to the security of the state can be peddled in the name of right to freedom of speech and expression.

By Saurabh Dubey

(The writer is JNU alumnus and is currently Assistant Professor at Bhagat Singh College, Delhi.)

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