By Tanishk Goyal

Introduction

The process of indoctrinating a society with nationalistic and patriotic values requires the masses to understand the dichotomy which exists between dissent which is considered rational and in national interest, and dissent which is considered seditious. This dichotomy is a very thin line and more often than not, a plaything of perspectives.

This is to say that stifling rational dissent in a society like India nowadays, would tantamount to extorting the fundamentals basis on which a democracy like ours functions, rather than promoting nationalistic tendencies.^[1] However, these implications may vary across jurisdictions and  governments depending on the masses, their understanding and perspectives of rationality.

This was one of the reasons Rabindranath Tagore felt that India was not ready for the western ideals of nationalism, as the difference between nationalism and jingoism had not been understood by the masses.

Against the backdrop of Tagore’s critique of nationalism and its misfit for a diverse country like ours, I seek to revisit the sedition law of India, and illustrate how concrete jurisprudence and modern case law on sedition has ensured that nationalism and dissent remain on the two opposite ends of the binary and how Tagore’s fear that nationalism would lead to moral degeneracy and intellectual blindness  has been taken care of by ensuring that the voice of dissent is not muzzled.^[2] Throughout the course of this article, I seek to illustrate the narrative that there is a need to maintain the status quo, with respect to sedition laws in India. By doing this, I seek to advance Tagore’s ultimate objective of national integration and concurrently, interlink it with the contemporary times. I endorse the Tagorian perspective that Nationalism should not get hold of the minds of the people and rationality should always prevail over jingoism. However, I differ from Tagore’s absolutist opposition to Nationalism, on the basis of the fact that the jurisprudence regarding what fell within the contours of sedition and what did not, was arbitrary at the time of the colonial era. Therefore, the implications of having a sedition law at the time of the colonial rule or immediately post that, would be fundamentally different from the implications of having the law today.

 

I. The Tagorian perspective of Nationalism

 The Tagorian take on Nationalism is a perspective, which essentially advocates national integration but at the same time, is against the concept of a nation.^[3] Tagore felt that the concept of a nation was a social construct, neither human, nor spiritual,  which was being used as a tool for making room for the political and commercial interests of man.^[4] He was an advocate for creation over construction and felt that as opposed to construction, which expresses our wants and purposes, creation was the expression of our very beings.^[5] Whereas, on the one hand, it was said that Tagore sung Bengal into a nation,^[6] on the other, he was of the opinion that nationalism was a borrowed western ideal which was crushing our own history.^[7] Tagore also felt that Nationalism sowed the seeds of intolerance in the society, ^[8] and the right way to achieve national integration was spiritual unity which would only come through the narrative that ideals of humanity are greater than a social construct, like a nation.^[9]

While Tagore rejected the borrowed idea of nationalism for strengthening unity in India, by giving a myriad of reasons, he was still an avid supporter of national unity through the creation of soft power and the natural regulation of relationships amongst the masses. I take this perspective to mean that, while Tagore absolutely rejected the idea of induced or forced nationalism, or nationalism without rationality, he still was a champion of national integration through the creation of an emotion which came from within, that emotion arising out of a feeling of belongingness to a community, irrespective of the fact whether that community is a part of a larger social structure or not. [10]

 

II. The role of Dissents in the shaping of jurisprudence post Colonial Era

Before going into the analysis of the manner in which current jurisprudence on sedition law has taken shape, and how it has advanced the Tagorian perspective of achieving national integration without making the masses reach a point of fanaticism, it becomes pertinent to note the role of dissents in ensuring the same. It is for the presence of dissent and the differences of opinion that our society did not degenerate into an era of “intellectual blindness,”^[11] as feared by Tagore. In the years which followed the colonial rule, Indian masses and lawmakers have gradually developed a perspective which values dissent, inasmuch as, the Supreme Court, today expressly recognizes the significance which dissents hold in ensuring the continuity of a healthy democracy, while terming them as safety valves of a democracy.^[12]  

As is clearly evident from the landmark case of Kedar Nath Singh vs State of Bihar,^[13] the provisions of the law would only be attracted if there is a commission of an act which “creates hatred/disaffection against government established by law”^[14] et al.  This judgment, was a welcome step as it essentially meant that merely dissents and differences of opinion of the masses could no longer be held to be seditious.  In what came as a progressive step with resect to the concept of nationalism, which ever so often was opined by Tagore to be anachronistic, The Kerala High Court held that even if a person commiserated with the ideology of a banned terrorist origination like the ISIS, their views would not attract the penal provisions under a nationalistic law.^[15]

Furthermore, since the fall of the British Empire, multiple cases laws^[16] have made it sufficiently clear that nationalism and patriotism can concurrently exist with heterogeneity of race or colour in a country, if the voice of constructive criticism and  dissent is valued by the State instead of being stifled by it.

 

III. Why is status quo desirable?

 The sedition laws were brought in by the British, to curb the revolutionary movement in India, which was essentially the dissent of the masses. The arbitrary implementation of the law is evidenced by the fact, that the Code of Criminal Procedure, was amended after the First Bal Gangadhar Tilak case,^[17] in order to make the law more stringent, so as to suppress any kind of opposition to the colonial rule. Interlinking such arbitrary suppression of dissent with the Tagorian perspective of nationalism, it becomes sufficiently clear that Tagore was against irrational and absolute nationalism which was crafted according to the whims of our colonial masters. However, as enumerated in Part II, modern case law and jurisprudence, which takes dissent to be of utmost importance has started to serve Tagore’s purpose of isolating nationalism from jingoism and absolutism. The doctrines of constitutional morality,^[18] and harmonious construction^[19] of our constitution have ensured the maintenance of a sustainable balance, essentially, between the freedom to dissent from the mainstream and the intention to incite hatred against the government.

Thus, with the Tagorian objective of achieving nationalism without an element of absolutism having been accepted by contemporary jurisprudence and the semantics of the sedition law having been set in process of getting balanced to suit the contemporary times,^[20]  making any changes to the law, would mean redefining the jurisprudence on the extent and limitations sedition law from square one. This would push the country into years of ambiguity regarding the rights and duties of its citizens, which, in turn, might not be a sustainable exercise.

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IV. Conclusion

While relaxing the provisions of the law or completely scrapping it would be a futile exercise, making it more stringent might also not be an efficacious remedy. This is essentially because relaxing or scrapping the provisions of the law would necessarily imply the absence of any major deterrent to the crime of inciting violence against the Government. A larger implication of doing so, amongst other things, could be the pseudo-legitimization of fake news and its proliferation. This could lead to a disruption of public order, tranquility, and the creation of an information asymmetry between the different sections of the society, which in turn would be antithetical to the Tagorian perspective of Nationalism.

On the other hand, making the law more stringent would essentially reinforce the colonial sentiments which were at play at the time the law was first brought into force. Illustratively, it would beget the rise of intolerance and absolutism in the country.  It would bring about a blatant disregard of dissent, spiritual unity and the mobilization of soft power which in turn, were considered to be the most revered values of national integration by Tagore.

The contemporary jurisprudence on sedition law in India, however, strikes a perfect balance between the two opposite ends of the free speech spectrum discussed above. It thus, makes the maintenance of status quo desirable by ensuring that the framework maintaining the balance between free speech and national unity, as envisaged by Tagore, does not lose its sustainability in the times to come.

Tanishk Goyal is a 2nd Year B.A. LLB. Student at The West Bengal University of Juridical Sciences (NUJS), Kolkata.

 

^[1] Brad Adams, Stifling Dissent, The Criminalization of Peaceful Expression in India, Human Rights Watch (May 24, 2016), https://www.hrw.org/report/2016/05/24/stifling-dissent/criminalization-peaceful-expression-india.

^[2] Rabindranath Tagore, The Nation, The Literature Network, http://www.online-literature.com/tagore-rabindranath/creative-unity/8/.

^[3] Tagore and Nationalism, Concept Note, Indian Institute Of Advanced Study, http://iias.ac.in/event/tagore-and-nationalism.

^[4] Mohammad A. Quayum, Tagore and Nationalism, The Daily Star (May 11, 2013, 12:00 AM), https://www.thedailystar.net/news/tagore-and-nationalism.

^[5] Rabindranath Tagore, The Creative Ideal, The Complete Works Of Rabindranath Tagore, http://tagoreweb.in/Render/ShowContent.aspx?ct=Essays&bi=72EE92F5-BE50-40D7-AE6E-0F7410664DA3&ti=72EE92F5-BE50-4A47-5E6E-0F7410664DA3.

^[6] QUAYUM, supra note 6.

^[7] TAGORE, supra note 2.

^[8] QUAYUM, supra note 6.

^[9] TAGORE, supra note 2.

[10] Id.

^[11] TAGORE, supra note 3.

^[12] Shaswati Das & Abhiram Ghadyal, Dissent is the safety valve of democracy, says SC, Live Mint (Aug. 29, 2018, 10:35 PM), https://www.livemint.com/Politics/SiXRDqBThdK92lfR0CRyEP/Dissent-is-the-safety-valve-of-democracy-says-SC.html.

^[13]Kedar Nath Singh v State of Bihar, (1962) 2 SCR Suppl. 769 (India).

^[14] Id.

^[15] Yasmeen Mohammad Zahid v Union of India, CRL.A.No. 506 of 2018.

^[16] Common Cause & Another v Union of India, (2016) 15 SCC 269; Arun Jaitley v State of Uttar Pradesh (2015) SCC Online All 6013 (India); Javed Habib v State (NCT of Delhi), (2007) SCC Online Del 891; Balwant Singh v State of Punjab (1995) 3 SCC 214.

^[17] Queen Empress v Bal Gangadhar Tilak (1898) ILR 22 BOM 112.

^[18] Aradhana Cherupara, Constitutional Morality in the Indian Constitution Surabhi Shukla, University Of Oxford, Faculty Of law (Mar. 12, 2018), https://www.law.ox.ac.uk/current-students/graduate-discussion-groups/south-asian-law-discussion-group/blog/2018/03-0; Motion Re. Draft, Parliament Of India, Lok Sabha (November 5, 1948, Constituent Assembly Debates), http://164.100.47.194/Loksabha/Debates/Result_Nw_15.aspx?dbsl=144&ser=&smode=.

^[19] Commercial Tax Officer, Rajasthan v. M/S Binani Cement Ltd. & Anr. [2014] 3 S.C.R. 1.

^[20] Avarindam v State of Kerala, (1983) SCC Online Ker 26.