Freedom of expression is the foundation of a democracy. Suppression of speech its anathema. Yet the very basis of a democracy is the rule of the majority. Abiding by the popular will. Respecting the popular opinion. And therein lies the paradox. If expression through free speech militates against the will of the majority, would it be democratic to permit it?
The paradox resolves if one understands the concept of freedom. As Justice Holmes pointed out, the freedom is not for the voicing of the thought that is cherished but of that which is hated. One does not require the understanding of the vast majority to parrot the populist belief. It lies in accepting the voicing of the hateful or objectionable thought. The apparent conflict of freeflow of expression with the dictum that the majority will prevail is answered in our Constitution. Freedom of expression be strictly protected albeit with reasonable restrictions. An attack on the sovereignty of the state, an incitement to violence, creating public disorder or defaming others (for, after all, does not one’s liberty end where another’s nose begins?). Restrictions were necessary to subserve the security of the state—to subserve democracy itself. To ensure that a violent minority does not give birth to an autocracy.
But the devil in any great idea lies in its execution. Using what were intended as tools to strengthen democracy and a free state as an aid to quell dissent and criticism was a natural temptation for those in power and the majority who willed the minority to adapt to their way of thinking. Repeated attempts were made to use these restrictions to restrain the voicing of independent, critical or distatesful opinions. Fortunately, the courts have been ever-zealous guardians of democracy and stepped in with a heavy hand to thwart such attempts.
Sedition has always been a handy tool for an intolerant government. The loose wording of Section 124A IPC (a product of mid-19th century British views, including homosexuality, adultery and even an attempt to commit suicide as crimes to be punished) assists this. Sedition, as defined, includes bringing or attempting to bring into hatred, contempt or disaffection the government established by law in India. Delightfully vague! Fortunately, explanations to this Section make it clear that these would not include expressing disapprobation of the measures, administrative or other actions of the government to obtain their alteration by lawful means. But again vagueness creeps in—such comments should also not attempt to excite hatred, contempt or disaffection.
Naturally, any government of the day yearns the utopian dream of the entire populace appreciating their actions and may be tempted to resort to draconian means to prevent criticism. This caused the Supreme Court even in 1962 to clarify that the expression ‘government’ was not the ruling party of the day but meant the State itself, that is the Union of India. Equally it read in an important and oft forgotten necessity that such words or expressions should incite or be calculated to incite violence.
Therefore, if, without inciting violence, one was to express an extreme view that a state or a body of persons should be independent of the Union of India, it would not amount to sedition—a hateful view perhaps, but one held by its proponent in a free democratic society. After all, did the Union of India itself not find it necessary to even use force to liberate the occupants of a territory of Pakistan from their oppressive government of the day and assist in the creation of an independent State for them? If this litmus paper test of the incitement to violence is strictly applied, sedition would not be capable of being used as a draconian tool in the hands of the government and give respect to the basic tenet of democracy—allowing voicing of opinions, however diagreeable they may be.
It is not an easy concept to accept for those who find the thought distasteful, but is the quelling of free speech any less distatesful? After all may we not find ourselves wanting to express an opinion unpalatable to the majority? And does not tolerance, in the words of Justice Chinappa Reddy, run like a thread through the Constitution?
And if we apply this test, could we honestly believe that the occurrences in the Delhi University and more recently in Bangalore were seditious?
C Aryama sundaram Senior advocate, Supreme Court