The boundaries of free expression are deep

The debate in India over “intolerance” and “sedition”, simmering for a while, came to a head with the arrest of a student leader, vigilantism of Patiala House court lawyers in attacking him in court premises, Supreme Court intervention to secure sanctity of the judicial process, incarceration of the accused student leader Kanhaiya Kumar and his associates, and the discovery that crucial video tapes had been doctored. The Western media took adverse note of the sordid goings-on.

The Bharatiya Janata Party voiced its opinion in the international media, arguing that to raise slogans about occupation of Kashmir or to dub the hanging of Afzal Guru and Maqbool Bhat after due process as “judicial killing” was crossing that vital line when conduct becomes sedition. It provocatively enquired how the United States would react if a similar protest was held on a US campus commemorating the death of Osama bin Laden, forgetting he was not a US citizen.

Two vital constitutional issues arise from the stand-off between the students of Jawaharlal Nehru University, traditionally intellectually permissive and predominantly Left-leaning, and the BJP’s pillorying of them as anti-national i.e. freedom of speech and expression and what constitutes sedition, a crime dating from the Indian colonial period of criminal jurisprudence. The BJP’s reasoning is flawed as it ignores US Supreme Court rulings on these issues as indeed terrorism and the limits a government must observe in fighting it.

As regards the first issue, the US Supreme Court in Texas v. Johnson, 1989, ruled that even the burning of the US flag as symbolic protest was protected by the First Amendment even though society may find the act as offensive or even outrageous. When the US Congress passed an act to outlaw flag burning, the Supreme Court struck it down.

The US Congress failed to again pass such a law in 2006 by one vote. Clearly the court was standing up to even popular but misguided moves to curtail freedom of speech. However in 2007, after two President George W. Bush nominees had joined the Supreme Court, the court upheld the suspension of a student unfurling a banner that read “BONG HiTs 4 JESUS”. With Justice Antonin Scalia’s death and US President Barack Obama determined to name his successor, the balance of opinion may again tilt towards the liberal-centrists.

As regards the second issue that Indian hyper sensitivity is justified by past and continuing brush with terrorism, the US Supreme Court grappled with it when examining the Bush administration’s holding of prisoners at Guantanamo Bay without protection of US or international laws. In three cases involving the US and foreign nationals, the court determined that due process of law had to be observed when incarcerating even so-called “unlawful combatants”.

The US Supreme Court granted certiorari in Rasul v. Bush, Hamdi v. Rumsfeld and Rumsfeld v. Padilla cases in 2003-04, despite the US solicitor-general pleading that: “The United States is at war”. Justice Stevens observed that many of the darkest moments in the court’s history occurred when the justices deferred too much to the purported expertise of the executive branch in the matters of national security.

Most notoriously, Americans of Japanese ancestry were interned during the Second World War. Justice O’Connor opined: “It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested.”

The Economist magazine has fired an editorial fusillade in a piece titled The last refuge, clearly referring to the quote that the last refuge of a scoundrel is nationalism. It refers to “an ugly strain of BJP politics” which the magazine feels is distracting it from its economic agenda.

The government may well either rest on its oars after the counter-point and ignore the rest as liberal balderdash but it then risks sending a wrong message abroad when it is bending backwards to woo foreign direct investment. What makes India attractive as an investment destination is not only its market size, scope for growth or its relatively younger population, but also rule of law and social harmony.

There are whispers about some multi-nationals relo-oking at moving some operations back to the capital from Gurgaon after the disruptive Jat agitation.
Historically, the year 1968 was the year of youth protests globally, ranging from the US to Europe — both East and West. The Paris student uprising, which was joined by the labour class, challenged the smugness and conservatism of the Charles de Gaulle regime and almost brought it down. In the US, the anti-war agitation conflated with the civil rights movement to cause a flood of protests.

John Lichfield wrote that students believed “that activism was effective as a way of changing education and society.” But despite the challenge, the Gaullist regime did not shout sedition or use brute force realising that the students were not challenging the existence of France but to make it more equitable and in line with their dreams. This line of reasoning escapes the ministers of Modi government.
Mr Kumar’s impassioned speech after his release has catapulted him to national recognition.

He symbolises the resistance to minister of human resources development Smriti Irani’s misguided zeal to occupy the mental space in Indian universities with the monochromatic ideals of the Rashtriya Swayamsevak Sangh’s founding fathers. Those contesting this attempted intellectual heist are dubbed anti-national. The Economist succinctly concludes that while Arun Shourie called BJP as merely Congress plus a cow, it is actually Congress plus a flag.