‘If dissent is not allowed, it’ll take different forms’

The former Attorney General about recent landmark judgments of the Supreme Court, the credibility of the court, and the sedition law

September 20, 2017 12:15 am | Updated December 03, 2021 12:24 pm IST

Soli Sorabjee

Soli Sorabjee

Former Attorney General of India, Soli Sorabjee, was given the Padma Vibhushan 15 years back for his defence of the freedom of expression and protection of human rights. Now, at 87, Mr. Sorabjee says he is looking forward to making his arguments in a pending case on Aadhaar. Excerpts from a wide-ranging interview:

What are the implications of the Supreme Court’s privacy judgment on Section 377 of the IPC (that criminalises homosexuality)?

I think Section 377 is very questionable now in light of the privacy judgment. The Supreme Court overturned a very good judgment by the Delhi High Court, which had struck down Section 377.

In view of the unanimous privacy judgment of the court, it is clear that what you drink and eat and whom you consort with cannot be the concern of the state. Of course, privacy is also not absolute. No fundamental right is absolute. If a man with questionable reputation visits haunts which have a dubious reputation, and has terrorist links, you can take action against him. But that should be done with proper application of the mind. You can’t rush in to slap the law.

Do you anticipate more litigation in light of the privacy judgment?

There will be (litigation) on Aadhaar and many other issues. The essence of the right to privacy is the right to be left alone. This is one of the most cherished rights of democracy. It is difficult to draw a line, though. Sometimes there are borderline cases but even in such cases, it should be in favour of the person. But the prosecution doesn’t want to take chances and would rather send the person to jail.

What are your arguments in the Aadhaar case?

In principle, I also feel that there isn’t an argument against Aadhaar, especially when it is linked to social benefit schemes. It is possible that it can be misused, but the possibility of misuse cannot be the ground for arguing that the law is not required. It is a grey area, and we must place our trust in the judiciary and the media. The Aadhaar matter is pending, and I may be involved in some cases, so I don’t want to go into that.

You had expressed satisfaction at the fact that the privacy judgment was unanimous. But this was not the case with the triple talaq judgment.

On triple talaq, the former Chief Justice of India (CJI), Justice Khehar Singh, said Parliament must pass a law. But I am afraid, on matters such as this, there should have been a unanimous judgment. It carries more weight. If you dissent, people read different meanings. That’s why I am glad that the privacy judgment was unanimous. On triple talaq, the main thing is, you cannot arbitrarily divorce a woman. Yes, you can profess and propagate any religion under Article 25, but this is subject to other provisions in the Constitution. Article 14 (equality) cannot be achieved by having gender discrimination. But what I saw was a community upsurge against the women fighting against triple talaq. Why can’t the woman be given the right to give triple talaq to her husband? It won’t happen. The women who fought were seen as anti-Islam, were maligned in the community. You cannot argue that it is a personal law.

There have been some allegations against Supreme Court judges. Would you say that people today still have faith in the judiciary?

People still ask for a judicial inquiry despite all the challenges and faults of the judiciary. The confidence has not gone — and rightly so.

What do you think of the Supreme Court’s national anthem judgment and the Madras High Court’s Vande Matram judgment?

These (judgments) were meant well, but they were not proper judicial dicta. To my mind, the courts should not have got into this. They could have said this is desirable, but not to the extent of making it mandatory. The Jehovah’s Witnesses case still holds good, where the Supreme Court had observed that there was no provision in law which obliges anyone to sing the national anthem. So, the present order was not necessary at all.

Would you agree that the discussions on intolerance — for instance, what people should be allowed to eat — have come to the fore in the last two-three years?

Well, it has gained prominence. But I don’t think this will succeed. One cannot say, ‘you must be a vegetarian.’ People have lost their lives; how terrible is that! That’s why the courts afford protection. But sometimes, the courts fail. Judges are not infallible.

You had recently said that a critical test to check the claim of any country being democratic is its tolerance of dissent and the protection afforded to dissenters. How has India fared in the test?

India can fare better; this atmosphere of fear must be removed. But it is also a fact that all dissenters are not put behind bars. You see people criticising Prime Minister Narendra Modi, the Prime Minister’s Office, the government. There is apprehension that if they dare say anything against the government or against the established order, they may be incarcerated or put behind bars. That impression must go. The government must make solid efforts to encourage dissent, provided it is not abusive, of course. This is important because if dissent is not allowed, then it takes different forms, not very healthy forms, and finds outlet in other activities.

Why have things come to such a pass?

It is not really as sorry as it is made out. It’s a bit exaggerated. But the fact that there is such an apprehension... that itself is not a good sign. Sometimes an issue is politicised, and an impression is created that people will be put behind bars. We have witnessed criticism of the government in trenchant, virulent terms. They are not put behind bars or murdered. The Opposition also exaggerates it. The real test is for the people to openly say: ‘We dissent and we challenge you to do something to us.’

When people criticise, it is often called seditious. Do you think the sedition law should remain in the statute books?

Yes. Challenge the actions, the facts on which the action was taken. But not the statutory provision. The criminal misappropriation provision in law, for instance, where false charges are made. Take Section 420, it has been abused. The judiciary, I must say, comes to the aid of people who are falsely charged or whose voice of dissent is sought to be suppressed. Different judges have different ways of looking at things. By and large, the judiciary has been commendably forthright in supporting voices of dissent.

Perils are there in the abuse of law by law enforcers, and very often, this section (sedition) is put to action because of overcautiousness or out of ignorance. It should not be. On the whole, the authorities have understood the meaning of sedition. It should be clearly laid down that criticism of the government is not sedition, unless there is a call to violence. Suppose there is a cricket match and Pakistan wins and you clap for Pakistan... that’s not sedition. I may hold a different view and not like the person who claps. They say, ‘Pakistan Zindabad !’... that’s not sedition. ‘Bharat Murdabad! ’ in itself is not sedition. But if someone says, ‘ Bharat ke tukde kar do ’, the section can be invoked for incitement to violence. But they should be seen in the right context. Authorities should not be overenthusiastic in applying the provisions of the act.

I am against the view that sedition should be done away with altogether. It is required in some cases. If there is a call to do away with the state by resorting to violent means, this needs to be checked by a proper application of the sedition law. A misuse does not mean do away with sedition. Do away with the action, but retain the provision.

How do you view students being slapped with sedition charges?

JNU? Why can’t they dissent? It was nonsense that they were slapped with sedition. Sedition needs to be understood properly. Sedition is not criticism of the government. In sedition, the essential element is by words or action; there is an incitement to violence. That’s the sine qua non of the offence of sedition. The police who slap such charges are ignorant of the law. Any criticism, they slap sedition. The authorities should have seen the action of the students rationally. Usually, there is not (a clear) understanding of the law. In one case, Arun Jaitley was slapped with sedition, if you please.

What do you have to say to reasonable restrictions of free speech in the context of dissent? Does it require a relook?

Reasonable restrictions should go with the facts of each case. Reasonable means the restrictions shouldn’t be excessive or disproportionate. It should have a rationale in relation to the objectives stated. If the objective is to prevent people from giving a call to violently overthrow the government, reasonable restrictions should be invoked, but that does not mean excessive usage. It does not imply doing away with the section on reasonable restrictions to free speech.

You were Attorney General during Atal Bihari Vajpayee’s term as Prime Minister. What is the change you see from the Vajpayee era to the Modi era?

Mr. Vajpayee, of course, was far more tolerant. No question about it. Or, let me say, he appeared to be tolerant. Mr. Modi I wouldn’t say is intolerant, but is made to appear intolerant.

By whom?

By some people in the party he belongs to and by the Opposition. His party members make stupid statements like, ‘if you don’t like this, go to Pakistan.’ Those few do a great damage to the government and the Prime Minister.

But the Prime Minister has remained silent.

Yes, of course. And silence sometimes can imply consent. But a Prime Minister cannot react to everything. He has condemned gau rakshaks. He has said you cannot kill in the name of religion. India is such a vast country. The real issue is to sensitise people on the value of free speech and the importance of dissent. That can be done even in school and educational institutions.

What should India’s position be on the Rohingya issue?

Instinctively and on principle, I am against deporting them. Do they pose a threat to security? Do they affect public tranquillity? Unless we have a cogent evidence against them, we should not deport them.

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