Author: Taniya Ghanghas
II Year | National Law University, Orissa

Introduction:

The spirit of our Indian constitution manifests itself in a variety of forms – at times as liberty, dignity, and right, and at other times as equality, justness, fairness, and rationale. However, its essence lies in Part III. Firstly, it gives our ruler powers and liberty to preserve our nation’s Sovereign, Socialist, Secular Democratic Republic character. Secondly, it also empowers the people with rights and freedoms to keep a check on the power. Subsequently, these ideals continue to expand as society evolves in tune with its changing needs.

The COVID-19 pandemic is now wreaking havoc around the world, and India is no different. As a result, this pandemic is eroding the foundations of the Indian medical industry. It has also affected people’s fundamental human rights. The central government has followed a trend of systemic repression of dissension in recent years.[1] On numerous occasions, people’s rights were curtailed. At the same time, the state has used several intimidation techniques and threats. They are used to quell dissension, and the pandemic period has strengthened those practices even more.[2]

Right to Dissent:

Indian regulations require its citizens to exercise individual rights to prevent its governors from undermining the rule of law.[3] For instance, there exists the right to question, the right to scrutinize, and the right to disagree. It allows the informed populace to scrutinize the government’s behaviour.[4] Our Indian Constitution grants its people the freedom of expression, of thought, etc, in line with three basic freedoms of Article 19(1)(a) to (c)[5]. Firstly, the “freedom of speech and expression; secondly freedom to assemble peacefully and without arms; and lastly the freedom to form associations or unions”.

An important fundamental right embedded in these freedoms is the liberty of dissent, underpinning a just, egalitarian society.[6] The Right to dissent is a hallmark of democracy.  Nevertheless, these constitutional freedoms are subject to public order, decency, and morality among certain limitations.[7] Rather than existing in isolation, these have to be balanced with the fundamental rights of others,[8] along with the constraints placed on their practice in the interests of Indian sovereignty and integrity.[9]

Suppression of Right to Dissent:

Limitations on the exercise of the right to dissent, however, have to be fair, reasonable,[10] and not excessive, and it is the state’s duty to justify their reasonableness.[11] Meanwhile, the question is whether our governed society can retain its right to dissent in the face of evolving notions of powerholders under the constitution. After instant FIRs, and arrests of journalists, activists, etc., it seems that civil society ideals are losing their practical impact.

The tyrannical rule of the Britishers brought section 124A of IPC, 1860, that is ‘Sedition Law’. Eventually, it curtailed freedom of struggle against the charge of waging war. [12]  Clutches of this obsolete law are still alive when it comes to denouncing the people’s legitimate critique of the government and making civilians suffer from its arbitrary use, for instance, contempt cases lined up during the pandemic.

We have all witnessed the demonization of demonstrators and their peaceful exercise of freedom to assemble. The script has always been the same whether it is the situation of Anti-CAA demonstrators, Kashmiris, or Farmers. With this intention to silence opposition, the state normally applies Section 144 of the Criminal Procedure Code, 1973, or blocks the internet.

Instances related to Right to Dissent:

It is important to realize that there are many incidents of suppression of public dissent in recent months. Activists have been accused of posing a mortal danger to the state interest in a variety of contexts. For example, it includes the Bhima Koregaon violence, communal disturbances in northeast Delhi, farmer protests, etc.

Farmers Protest:

During the farmers’ demonstrations, the authorities attempted to stymie peaceful protests by padlocking highways, digging trenches,[13] using water cannons, and tear gas shells[14] to prevent farmers from approaching Delhi. The government had also attempted to censor journalists and lawmakers who had spoken out in support of the movement. They were accused of sedition for triggering discord using certain tweets and falsifying evidence.[15] Consequently, efforts were made to ban live coverage from demonstration sites by clamping down on journalist practices or suspending Twitter accounts.[16]

Citizenship Amendment Act:

Another instance is the government’s enactment of the Citizenship Amendment Act[17] on 12 December 2019, which sparked protests in virtually every part of the country, with protesters expressing varied concerns.[18] This was followed by several charge sheets lodged under section 124A[19] and Section 153A[20] of IPC, 1860, against people who stepped outside to criticize the Citizenship Amendment Act and the National Registry of Citizens (NRC), and they are still being harassed with allegations[21] and intimidated with seditious charges.

Article 370:

Another decision by the government that rocked our right to dissent was when, after the revocation of Article 370[22], the state of Jammu and Kashmir used Section 144 of the CrPC[23] to curb any potential protests by shutting all communication facilities in the name of national interest. As a result, many academics and activists condemned it as illegal.[24]

Supreme Court’s Observation on Right to Dissent:

Dissent, discussion, or debate have to be free and substantive.[25] The Supreme Court has ruled that debates with dialogue contribute significantly to the smooth running of a balanced and prosperous democracy such as India. Disagreement on topics makes for more educated choices and the expansion of society.[26]

Conclusion:

In the twenty-first century, India, as a democratic country, could hardly be defined as an oppressive system. However, the practice of slamming down opposition needs to be discontinued. It is a fundamental practice to question, raise concerns, ask for reasonableness, to keep the government under pressure. These are rights that can never be withheld or curtailed, else this would develop into an undisputed moribund cultural society that cannot grow any further.

Societies that cherish dissent and the views of their communities generally have strong governance. It holds a consistent political framework that further strengthens the rule of law and the efficiency of regulatory authorities. It also strengthens the integrity of democracy with cultures of openness, and with the least presence of misuse of power.

Thus, if India wants its democratic regime, the government must allow people to safeguard their freedom to oppose. It shall prevent it from continuing partisan politics with oppressive laws in the country. The culture of peaceful protest is something that everybody should uphold in their hands with all the strength they have and never turn a deaf ear to. Any curtailment to resistance should not be viewed as a normal block, but that should be countered with resistance too.

[1] Vindu Goel and Jeffrey Gettleman, Under Modi, India’s Press Is Not So Free Anymore, The New York Times (April 2, 2020). https://www.nytimes.com/2020/04/02/world/asia/modi-india-press-media.html.

[2] Santosh Paul, Hounding of ‘The Wire’: Is this the crucifixion of the free press and democracy?, The Economic Times (April 19, 2020). https://economictimes.indiatimes.com/blogs/courts-commerce-and-the-constitution/hounding-of-the-wire-is-this-the-crucifixion-of-the-free-press-and-democracy/ .

[3] Bachan Singh v. State of Punjab, AIR 1982 SC 1325 (India).

[4] Justice K. S. Puttuswamy and Ors. v. Union of India and Ors., (2017) 10 SCC 1 (India).

[5] Indian Const. art 19(1).

[6] Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2005) 6 SCC 1 (India).

[7] Indian Const. art 19(2).

[8] Subramanian Swamy v. Union of India and Ors., (2016) 7 SCC 221 (India).

[9] Anita Thakur and Ors. v. Govt. of J and K and Ors., (2016) 15 SCC 525 (India).

[10] VG Row v. State of Madras, AIR 1952 SC 196 (India).

[11] Mohd. Faruk v. State of Madhya Pradesh and others, (1970) 1 SCR 156 (India).

[12] Queen-Empress v. Jogendra Chunder Bose, (1892) ILR 19 (Cal.) 35.

[13] Farmers protests: Haryana’s barricades fail to stop Delhi Chalo march; national capital on alert, TheNew Indian Express (Nov. 27, 2020, 8:29 AM), https://www.newindianexpress.com/nation/2020/nov/27/farmers-protests-haryanas-barricades-fail-to-stop-delhi-chalo-march-national-capital-on-alert-2228589.html.

[14] Protesting farmers brave water cannons, tear gas shells: Key Points, Times of India (Nov. 26, 2020), https://timesofindia.indiatimes.com/india/farmers-protest-turns-violent-leads-to-traffic-snarls-key-points/articleshow/79430745.cms.

[15] India: Government must stop crushing farmers’ protests and demonizing dissenters, Amnesty International (Feb. 9, 2021), https://www.amnesty.org/en/latest/news/2021/02/india-government-must-stop-crushing-farmers-protests-and-demonizing-dissenters/.

[16] Twitter accounts of those supporting farmer protests, suspended, The Times Of India (Feb. 1, 2021),  https://timesofindia.indiatimes.com/india/twitter-accounts-of-those-supporting-farmer-protests suspended/articleshow/80636683.cms.

[17] Citizenship Amendment Act 2019.

[18]Serhan Yasmeen, When is a Protest too late?, The Atlantic (Dec. 18, 2019), https://www.theatlantic.com/international/archive/2019/12/india-citizenship-law-protest/603793/.

[19] Indian Penal Code 1860 § 124A.

[20] Indian Penal Code 1860 § 153A.

[21] Tarique Anwar, Delhi Riots: Police Spin Conspiracy Theory, Accuse Anti-CAA Protesters of Planning ‘Blast’ Ahead of Trump’s Visit, News Click (June 16, 2020),  https://www.newsclick.in/Delhi-Riots-Police-Spins-Conspiracy-Theory-Accuses-Anti-CAA-Protesters-Planning-Blast-Trump-Visit.

[22] PIB Delhi, Government brings Resolution to Repeal Article 370 of the Constitution, Press Information Bureau Government of India (July 22, 2020) https://pib.gov.in/PressReleseDetailm.aspx?PRID=1581308.

[23] Code of Criminal Procedure 1973 § 144.

[24] Pratap Bhanu Mehta, The story of Indian democracy written in blood and betrayal, The Indian Express (Aug. 6 2019), https://indianexpress.com/article/opinion/columns/jammu-kashmir-article-370-scrapped-special-status-amit-shah-narendra-modi-bjp-5880797/.

[25] Mukta Dabholkar v. Central Bureau of Investigation, (2018) SCC (BOM.) 16909.

[26] Prakash Jha Productions v. Union of India, (2011) 8 SCC 372  (India).

Editor: Ashish Ranjan