LOVE BANDHI: The BJP government in Uttar Pradesh under Yogi Aditiyanath has unleashed a terror campaign against couples in love or even brothers and sisters found together in public places

Former chairman of the 20th Law Commission of India and former Chief Justice of the Delhi High Court, A.P. Shah, lashed out at the growing intolerance of the Modi government and stressed that no government can dictate what its citizens can speak or eat or drink

Excerpts from a speech at the recently-held M.N. Roy memorial lecture in New Delhi

A PAROCHIAL, selfish, narrow-minded nationalism has caused so much misfortune and misery to the world. A mad and exaggerated form of this cult of nationalism is today running rampant….”

This statement made by M.N. Roy, as far back as 1942, may resonate with many even today, particularly in these times we live in.

Attack on civil liberties

TODAY, we are living  in a world where we are forced to stand for the national anthem at a movie theatre, we are told what we can and cannot eat, what we can and cannot see, and what we can and cannot speak about. Dissent, especially in the university space, is being curbed and sloganeering and flag raising have become tests for nationalism. We have a 21-year-old university student who is subject to severe online hate, abuse and threats, only because she dared express her views.

In any society, at any given point of time, there will always be people holding divergent views. Such views are integral and inevitable in a healthy, functioning democracy. Nowhere has this been better expressed than by the judgment of the Bombay High Court in F.A. Picture International v CBFC, where the court said:

“History tells us that dissent in all walks of life contributes to the evolution of society. Those who question unquestioned assumptions contribute to the alteration of social norms. Democracy is founded upon respect for their courage. Any attempt by the state to clamp down on the free expression of opinion must hence be frowned upon.”

Unfortunately, however, our institutions of learning are under attack today and there is a concerted attempt to destroy any independent thought. Today, sadly, in this country I love, if anyone holds a view that is different from the government’s “acceptable” view, they are immediately dubbed as “anti-national” or “deshdrohi”. This marker of “anti-national” is used to intimidate and browbeat voices of dissent and criticism, and, more worryingly, can be used to slap criminal charges of sedition against them.

On nationalism

HOW, then, did M.N. Roy understand nationalism? In Roy’s view, nationalism was representative of the desires and ambitions of a group of people within a certain geographical area, as opposed to people uniting on the basis of class. Nationalism thus emphasised the placing of one’s country’s interest over the interest of the rest of the world. There was  a time in the 19th century, when countries were still isolated from each other, when nationalism was a historic necessity, under whose banner people came together and humanity progressed. However, he believed, it had now become a selfish, narrow-minded “antiquated cult” and the world should progress towards internationalism and international cooperation. The ambitions of different nations began to conflict with each other, contributing to an exaggerated and irrational form of nationalism, which manifest itself in the rise of fascism and nazism, eventually leading to the Second World War. Nationalism, in Roy’s eyes, had thus become a synonym for revivalism, whose advocates were consigned to glorify the past and advocate for a return to the bliss of the middle ages and a simpler life.

Rabindranath Tagore, the composer of the Indian national anthem, had even more radical views on nationalism. He believed that a fervent love for the nation represented a conviction of national superiority and a glorification of cultural heritage, which in turn was used to justify narrow-minded national interest. Writing in 1917, Tagore said, “When this organisation of politics and commerce, whose other name is the Nation, becomes all powerful at the cost of the harmony of higher social life, then it is an evil day for humanity.” He thus cautioned against such an exclusionary and self-aggrandising form of nationalism that was based on a hate culture against an imagined or actual Other, who was viewed as the enemy.

On the other hand, the revivalists focus on the glory of ancient India, going back to the Aryan race as the building block of the Indian civilisation. This takes the form of cultural nationalism, where anyone celebrating “Western” festivals such as Valentine’s Day or even couples merely holding hands are to be ostracised and attacked. As religious nationalism, it endorses the two-nation theory, which envisages a nation under Hindu rule, a Hindu rashtra in Akhand Bharat (a United India). This is premised on the belief that only a Hindu can claim the territory of British India as a land of their ancestry, i.e. pitribhumi, and the land of their religion, i.e. the punyabhumi. As Vinayak Damodar  Sarvakar propounded, “Hindu rashtra (state), Hindu jati (race) and Hindu sanskriti (culture).” Muslims and Christians are viewed as foreigners, who are not indigenous to the territory of India, and whose religion originated in a separate holy land.

India is a diverse country and people hold different views about nationalism, the idea of India and our place in the world. We must respect these differences, not silence those who hold a different view on nationalism and patriotism for the country. Elevating only a single view – one that idolises the nation and staunchly rejects any internal or external criticism – will only polarise citizens against each other.

At the end of the day, it is important to question – what is the defining characteristic of a nation? Is it the territorial boundary or the collection of people that is a country’s defining feature. Our constitution starts with a solemn declaration of  “We, the people of India…” In this context, is being anti-national equivalent to being anti-government or is the hallmark of an anti-national that they are against the interest of the people, especially the minorities and the depressed classes? Can an entire university and its student body be branded “anti-national”?

Our current state of affairs is especially sad when we consider that the freedom struggle gave us a country and a constitution that was committed to the ideals of democracy, free speech, civil liberties and secularism. Unlike Pakistan, religion is not the founding basis of our nation. Our right to free speech and expression is not a gift or a privilege that the government bestows on us; it is our right, guaranteed by the constitution of India and won after decades of struggle and sacrifice by the people of India.

On free speech and constitution

WRITING in Young India in 1922, Gandhi said, “We must first make good the right of free speech and free association before we make any further progress towards our goal. We must defend these elementary rights with our lives.”

Gandhi’s views were based on his belief that liberty of  speech is unassailed even when the speech hurts and that “freedom of association is truly respected when assemblies of people can discuss even revolutionary projects.”

Gandhi was not alone in his ideas. Our early nationalist leaders too, from Raja Rammohan Roy to Bal Gangadhar Tilak, made the grant of civil liberties to  ordinary Indians  an integral part of  the national movement.

These very ideas were incorporated into the constitution by the constitution drafters. They understood that while the freedom of worship is part of democracy and is a fundamental right, the edifice of modern democracy has to be the freedom of thought and expression. Our constitution is drafted as a positive, forward-looking, inclusive document that binds the aspirations of all Indians. The preamble expresses the resolve of the people to constitute India into a sovereign, socialist, secular, democratic republic securing justice, liberty, equality and fraternity of its citizens. This achievement is all the more noteworthy if we consider, as Fali Nariman recently pointed out, that in a constituent assembly of 299, 255 members (85 per cent) were Hindus. Despite being in a massive majority, the constitution drafters took pains to protect the interests of the minority, the oppressed and the dissenters.

Having been given a magnificent and inclusive constitution, it then fell on the Supreme Court to protect the rights guaranteed therein, especially the right to free speech and expression.

The value of free speech is thus both intrinsic and instrumental, and has consistently been linked to democratic ideals.

…However, free speech has to be protected institutionally – not only by the courts, but also by statutory institutions and the media. Unfortunately, we read about reports where the CBFC, our “censor board” has refused to certify a movie such as Lipstick Under My Burkha because it was  “lady oriented”, contained “sexual scenes, abusive words, audio pornography”; deleted the line “mann ki baat” from the upcoming movie Sameer because that is the name of the prime minister’s radio show; and demanded that the ‘Hanuman Chalisa’ be muted from a scene in Phillauri, because it failed to ward off the ghost. How can you forget that in Udta Punjab, an adult-only certified movie, the censor board demanded 94 cuts (based on 13 suggestions), including deleting the name “Punjab”, deleting certain abuses and deleting the words “election”, “MP” and “party worker”. If this is not an assault on the freedom of speech and expression, then I don’t know what is.

The freedom of the press is part of the freedom of speech guaranteed under Article 19(1)(a). This is because a free press is essential to disseminate different views and promote democratic ideals.

More importantly, today, when mass communication and digital media have become prevalent, the media assumes an even greater importance in playing the role of the opposition and checking facts. In fact, no other institution wields as much power and influence on public opinion as the media. However, in recent times, a section of the media, through its biased and one-sided reporting, has unfortunately aided in the restriction on free speech. A news channel airs false and doctored footage, while others openly flame the fans of this patriotism and anti-national debate. It is ironic that the media, which played a critical role in asserting its right to free speech during and after the emergency and in the process helped develop our Article 19(1) jurisprudence, is now the institution that is compromising and challenging the same freedom of speech of the dissenters today.

We also have social media, where online trolls and threats of rape and murder are regularly made against people supposedly making anti-national statements. I am left to ask myself, which part of Indian culture permits or promotes the making of such statements threatening a girl with rape or murder. Who are these people on Twitter and other social media who take comfort in their anonymity to make such aggressive threats against individuals?

Nationalism and sedition

LAWS criminalising speech such as sedition, defamation and blasphemy have been used against activists, dissenters and even political cartoonists to silence and harass them. In such a situation, using these offences to deter a person from speaking, instead of engaging with the underlying concerns of their speech, is detrimental to democracy.

The enforcement or the threat of invocation of sedition constitutes an insidious form of unauthorised self-censorship by producing a chilling effect on the exercise of one’s fundamental right to free speech and expression. That is why the law needs to be repealed. However, it is unlikely that any government will give up this power, and it is therefore left to the courts to re-examine the constitutionality of sedition. It is not enough to expect an acquittal by the courts after 4-5 years; we need to stop the misuse of the law to silence dissent by removing the source of the power itself.

Interestingly, England, from whom we have inherited the offence of sedition, recently repealed the offences of sedition and seditious libel, along with defamatory libel and obscene libel. In doing so, the justice minister, Ms Claire Ward observed in 2009, “Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today. The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom. Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.”

Nationalism and university space

AS PART of  the #FightbackDU campaign that was launched in response to the Ramjas protests, a 21-year-old LSR student, Gurmehar Kaur, tweeted a photo “I am  not  afraid of ABVP”. A video, where she held a placard saying “Pakistan did not kill my father, war  did” went viral and became the subject of intense national discussion and debate, with cricketers, actors and politicians all joining in to criticise the girl. In fact, she was subject to such hostility, threats and violence, especially online, that she had to get security and leave Delhi. Have we really reached such a stage of insecurity that a 21 year old’s views have to be met with such backlash? That the Union home minister for state has to tweet, “Who is polluting this young girl’s mind?” The guarantee of freedom of speech rings hollow if the state cannot guarantee freedom after speech.

The inaction of state institutions like the police in light of the violence and bullying by certain groups leads to a fear psychosis amongst students. Unless some remedial action is taken, we will produce an entire generation of students who will never have been encouraged to question the dominant ideas and encouraged to think differently. This will influence not just the nature of democratic citizenship, but will have a direct impact on the innovation and creative thinking that are necessary for economic progress of a nation.

Nationalism and patriotism

I WOULD like to talk about two more issues connected to free speech and nationalism. The first relates to the Supreme Court’s national anthem order requiring all movie-goers to “stand up in respect” for the national anthem before the start of a movie in order to “instil a feeling within one a sense of committed patriotism and nationalism”. The order of the court, which  seems a little short on reasoning to help understand how such an interim order was passed befuddles and seems contrary to the spirit of the constitution and past precedent, Bijoe Emanuel, which made it clear that we cannot be forced to sing the anthem. It is important to remember that the right to free speech and expression also includes the right not to speak or express ourselves. However, under the guise of “law”, the court has now stepped in and restricted our fundamental rights.

As Pratap Bhanu Mehta points out, the order fails to understand a distinction fundamental to liberal democracy – everything that is desirable or makes for a better citizen does not, and  should not, be made compulsory. In  fact, making something compulsory undermines the very meaning of that action and the respect that is normally accorded to it. It is a form of what I would call “conscripted nationalism”. Just as  joining the army is a noble career path, our lawmakers have rightly decided that India will not follow conscription, presumably because they believe in the liberty of the individual and the right to choice. Unfortunately, the judiciary thought otherwise.

I know of many people who considered themselves patriotic and would always stand when the national anthem was  played. But the Supreme Court’s order has fundamentally changed their relationship with the anthem and has resulted in undermining its import. The order may have ensured that cinema audiences throughout are now standing before the national anthem plays, but what the court fails to have realised is that such an action is a performance motivated by fear of being beaten up, rather than genuine respect and love for the anthem. In the end, it has actually undermined patriotism amongst fellow Indians.

Similarly, preventing people from eating the food they want and effectively forcing a life choice on them undermines any feelings of nationalism and unity, and is another insidious form of cultural nationalism. Recently, Mohan Bhagwat called for a national law against cow slaughter. But we must be wary of forcing a single ideology or way  of living  on the entire country, especially a country as diverse as India, where states such as Kerala or the various states in the Northeast consider beef a staple part of their diet. One reads multiple reports about slaughterhouse crackdowns in UP, crackdowns that are  primarily targeted at Muslim butchers, leaving lakhs of people with fear, but without  stable employment. We also recently had the horrific incident in Una where seven Dalits were beaten by cow-vigilantes for alleged cow slaughter. And how can we forget the lynching of Akhlaq, who was suspected for allegedly storing and consuming beef, but where the first thing that was sent for forensic examination was not his body, but the food that is in the fridge. Is this what the value of human life comes to?

Nationalism, when it devolves into such a form of cultural nationalism, is disturbing. I am personally very proud of being an Indian and of the Indian  culture. My wife and I practice yoga. But I am not comfortable with the drive to make yoga compulsory, to be foisted upon everyone, as if that were a badge of nationalism and Hindu pride.

Enforced nationalism cannot promote true culture. When a culture is arbitrarily prescribed and foisted, freedom of the creative spirit of man disappears or is suppressed. Only  free souls can create abiding cultural values; they may  physically belong to one particular class or geographically to a particular country; spiritually, they transcend all social and territorial limitations.

It has long been known that suppressing and censoring people’s speech will not remove the underlying simmering sentiment. In fact, it will only serve to alienate that section of the population further. If we have to give true meaning to the prime minister’s promise of “sabka saath, sabka vikaas” then we must celebrate not only those who profess affection for the state, but also those, who believe that change is necessary or injustice is being committed. We cannot have an Orwellian situation, where the government speaks in one language, but then fails to walk the talk. After all, as Desmond Tutu said, “If you are neutral in situations of injustice, you have chosen the side of the oppressor.”

The strength of a nation is not gauged by the uniformity of opinion of its citizens or a public profession of patriotism. The true strength of a nation is revealed when it does not feel threatened by its citizens expressing revolutionary views; when there is a free and open press that can criticise the government; and when citizens do not resort to violence against their fellow citizens, merely for expressing a contrary view. That is when we will have achieved liberty of speech. And that is when we will be truly free.

I would like to end this speech with a short poem ‘Speak’ from one of my favourite poets, Faiz Ahmed Faiz:

Speak, for your  lips are free,

Speak, your tongue is still yours

Your upright body is yours

Speak, your  life is still yours.

Speak, this little time is plenty

Before the death of body and  tongue

Speak, for truth  is still alive

Speak, say whatever is to be said.