Is calling for an independent Kashmir always seditious or illegal? The answer is NO.
By Garga Chatterjee
The Supreme Court has long declared that no public service can be denied to anyone who for whatever reason does not produce the Aadhar card. In short, it can’t be made mandatory for any public purpose. The Union government led by Narendra Modi has been flouting this directive through notifications issued from various agencies under it. The most recent and probably the most shameful notification came very recently when the Union government decided to deny mid-day meal to poorest of the poor children if they don’t have an Aadhar card now or in future. It may be surprising that the directive of the highest court of the land can be flouted with such impunity by the Union government as if it runs according to some law different from the constitution of India. Or may be its not that surprising. Because if what the Supreme Court had said mattered, then senior ministers of the Union government wouldn’t be using the term ‘seditious’ to characterize everyone who call for the independence of Kashmir, Punjab, Nagaland, Manipur or anything. It is not illegal to do so per se. It is not a crime.
Is publicly calling for an independent Kashmir or Punjab (and by implication destroying the unity and integrity of the Indian Union as presently constituted) seditious or illegal? The answer is No. Several hours after the assassination of Indira Gandhi who had ordered an Indian Army attack inside Sikhism’s holiest shrine, Balwant Singh and Bhipunder Singh raised slogans in support of Khalistan, that is the separation of Punjab from the Indian Union. They said “Khalistan Zindabad” several times near a busy cinema hall in Chandigarh. Though the so-called sedition law or Section 124A was applied against them for this act, the Supreme Court set aside their conviction under Section 124A. In short, the Supreme Court opined that merely raising slogans in support of a free Khalistan is not seditious. The logical principle that the Supreme Court applied in this case was derived from a 1962 Supreme Court judgement (Kedarnath Vs State of Bihar AIR 1962 SC 955). In the Khalistan Zindabad case, the Supreme Court quoted this 1962 judgement and said that sedition charges “apply only to acts involving intention or tendency to create disorder or disturbance of law and order or incitement of violence. This was done to avoid the provisions becoming violative of Article 19 of the Constitution which provides for freedom of speech and expression.” Former Supreme Court judge Markandey Katju summarizes these points as follows – “mere demands and slogans for Azadi etc will not be crimes unless one goes further and (1) commits violence, or (2) organizes violence, or (3) incites imminent violence.” That makes it clear that there is absolutely no legal basis to the ongoing hoopla that involves this person or that person being branded seditious merely due to slogans chanted in favour of freedom for Kashmir. In fact it is unfortunate that police forces apply this section in their chargesheet under weird assumptions of what constitutes sedition. One expects the enforcers of law to know the law in the first place. Same is the case with elected MPs and cabinet ministers of the BJP. One of them, senior Union cabinet minister M Venkaiah Naidu has recently said, “If raising azadi slogans is not treason then I don’t know what is”. He is right. M Venkaiah Naidu simply does not know what is treason as per the constitution of India. There is no shame in ignorance but it is rather obscene to parade one’s ignorance with such pride of power. He is a lawmaker. He ought to know the law. He is a Union cabinet minister. He ought to know what the constitution of India means. The present government wants to criminalize even democratic, peaceful calls for freedom from the Indian Union. Somewhere long dead British rulers of their South Asian empire must be very proud of the performance of their brown successors to uphold the worst elements of British rule. Criminalization of peaceful and democratic dissent is on one such. Compare this to the present day British isles which just recently had a referendum on Scottish independence. Such a call for independence was not responded to with militarisation, Section 144, army-roads, strip-searches, sedition charges, encounters, kidnappings, ‘friendly’ football and forced renditions of national anthems but by a debate around ideas of nationhood, autonomy, economy and future dreams. In the ensuing democratic referendum, the pro-independence side lost. Thus Scotland, for now, is part of the United Kingdom. That’s how government’s of civilized societies deal with internal dissent and difference.
In fact, some of the most eloquent speeches for secession have been made in the Parliament of India itself by none other than the stalwart leader of Tamil masses C.N.Annadurai. AIADMK and DMK, both of which claim to carry forward C.N.Annadurai’s ideology, between them won 223 out of the 232 seats of the Tamil Nadu assembly in the 2016 elections. And this is what Anna said in the Rajya Sabha in 1963 – “the very mention of separation is not a danger to sovereignty. Not only that, even granting that our propaganda for separation endangers sovereignty, what should a democratic party that controls the Government try to do? Should it not go to the people? Does not our Preamble say that soverieignty rests with the people? It is the people who have created the Constitution. It is to them, the repositories of our political rights, that you should appeal. I go to the people with confidence. I would request members of the ruling party to assure your Government about your capacity, about your ability to counteract me by educating the public. Why do you give up your rights? You as members of the ruling party and as responsible public men should suggest to the Government, “ Do not intervene between us and the public. If Annadurai carries on a propaganda for separation, we are alive to that danger. We shall meet the people and make the people understand the venomousness of the propoganda”. May I request Members of this House to give an amount of respect to the common man as a democrat? Do not think that the common man can be deluded by anybody. He may not be well versed especially in law but he has got a sound and robust commonsense. He knows how to distinguish between cheese and chalk, and when you bring in this measure, you are passing a vote of no-confidence against the commonsense of the entire nation. Why not leave the issue to the people? Let them decide.”
In another speech in the Rajya Sabha in 1962, Anna calls his Dravidian land a separate country and demands self determination. He said, “"I claim Sir, to come from a country, a part in India now, but which I think is of a different stock, not necessarily antagonistic. I belong to the Dravidian stock. I am proud to call myself a Dravidian. That does not mean that I am against a Bengali or a Maharashtrian or a Gujarati. As Robert Burns has stated, ‘A man is a man for all that’. I say that I belong to the Dravidian stock and that is only because I consider that the Dravidians have got something concrete, something distinct, something different to offer to the nation at large. Therefore it is that we want self-determination.”
Truth can’t be legislated, though its expression can be. A nation is only a nation to those who believe in it. A nation does not exist by itself, without its believers. It is a self-styled collective. If this collective has the resources to put symbols of its nationhood in areas significantly inhabited by people who may collectively think of themselves to be some other nation, conflict occurs. The most democratic and peaceful way of resolving this conflict, is to ask the people inhabiting the contested area, what do they want. If this choice is denied, then the outcome of that conflict – victory, defeat or constant repression – is typically ensured by superior resources, especially military resources – who has more money for guns, in short. In such undemocratic scenarios, victory is not necessarily the expression of popular will; neither does it represent the validity of some nation concept over another. Men with more guns and money 'win'.
What do Kashmiris want? I think New Delhi knows that very well and so do we. It is not without reason that Kashmir has been denied a referendum with independent nationhood as one of the choices. A power that confidently claims that most people in Kashmir are happy to be citizens of India also denies the people of Kashmir to show the world the extent of such happiness through a referendum. Whether that is a sign of confidence in what New Delhi claims to be true, I leave my readers to judge.
If there is no call to violence, but the utterance and propagation of an idea is sought to be curbed by the biggest media agenda setting, most moneyed and best armed show in town, then we can only infer one thing. That there is a fear that the utterance is something that people might love to hear and hence the hold of these utterances and the ideas they convey might propagate their hold on the people. One loves to hear things based on their inner aspirations and sensibilities as well as the the degree to which such things illuminate or resolve contradictions between one’s various experiences and understandings existing at that time. In short, they have a basis in people’s mind and reality. Whichever these people are, the powers that be have decided that their opinion of such types will not count and labours hard to prevent people being ‘infected’ with a contagion that connects far more strongly than its own continuous propaganda. It is a portal, a vista of ideology that the powers to be does not want opened. Thus, such ideologies are smeared as illegal (but ideologies cant be illegal, states of mind cant be illegal, only harmful action on others can be – harm being something that this ‘other’ also agrees with), people holding such ideological positions are either smeared as ‘dangerous’ or infantilized as ‘misguided’. At that point, the people cease to be sovereign. The real sovereign decides under what conditions people’s sovereignty can be suspended. Supreme power does not lie in deciding what rights a man has but in deciding in what situations can the rights of a man be suspended. Official extra-judicial killers are thus more powerful than courts. The strongest person in the ‘speech and expression’ department of the deep state is the one who decides what cant be allowed to be spoken, what cant be allowed to be expressed. And that’s precisely what the BJP is apparently conspiring. The Union government is apparently plotting to expand the ambit of sedition law to certain include ideas it doesn’t like, even if that does not call for violence. In short, it wants to terrorize people’s minds into silence. Coward is the one who fears words.