Nearly a century ago, in 1919, the United States had just finished with World War I, a war to end all wars. There had been race riots in the summer and labour strikes in the autumn. A bomb had exploded on the attorney general’s doorstep. In that year the U.S. Supreme Court was called to decide the case of Abrams v. United States . The case challenged the convictions of five Russian-born men who were prosecuted under the Espionage Act of 1917, as it had been amended by the Sedition Act of 1918, for “provoking and encouraging” resistance to the government’s war efforts (and its hostile manoeuvres toward Russia) through a series of pamphlets. The court sustained the conviction but one judge, Oliver Wendell Holmes Jr., dissented.
A time to stand up
When Holmes circulated his draft judgment to his fellow judges, three of them came to plead with him not to dissent. They feared a dissent, from Holmes, could weaken the country’s resolve and give comfort to the enemy. Holmes had always respected the institution of the Court and, at times had suppressed his own beliefs for the sake of unanimity. This time he felt he had to speak his mind. Holmes read his dissent from the bench and it caused a sensation. It was acclaimed as a monument to liberty.
Holmes wrote: “But when men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.”
These very words were cited in India last year by Justice Rohinton Nariman of the Supreme Court, when the court struck down Section 66A of the Information Technology Act in the >Shreya Singhal>case . It >freed online speech in India from the threat of arrests and prosecution.
“India, that is Bharat, shall be a union of states,” decrees Article 1 of its Constitution. In reality though, Bharatvarsha-India has in its nearly 70 years of independence been a disunity of strongly held political opinions, all of which dissent from each other.
There is an opinion that India has come into its natural inheritance only after the election of a majority government in May 2014. It is argued that the past 60-odd years of the Indian Republic were a mere epilogue to an empire and a Western era that had not fully died in 1947. The Nehruvian consensus, it is urged, was a hypocritical cloak of minority appeasement within India, and a subservient bowing to Western domination abroad.
The counter-narrative of the Left agrees that there has been a subservience to the West, but it says that appeasement, if any, has been of the rich and of religious majorities. The third tale told is by apologists of the ancien régime, who narrate a process of steady economic rise and containment of social tensions, which have now been interrupted by a cataclysmic lurch towards virulent nationalism.
Yet another story is told by those who lead people’s movements in various parts of India, as a tale of perpetual struggle against whoever is in power in Delhi.
These and other voices have contributed to the medley and melody of the argumentative Indian life that surrounds alike its villages and cities, bazaars and malls, and is daily amplified for the nation in television studios. Except for the twenty months of the Emergency, never has one voice prevailed to the exclusion of the rest. Nor has it ever been suggested that an opinion contrary to that of the government is somehow inimical to national interest. India’s ability to express and simultaneously contain a million mutinies, has been a source of joy to its friends and of wonderment to its adversaries. Zulfikar Ali Bhutto, who had once advocated a thousand-year war with India, proclaimed from his death-row cell in Pakistan, “India is more heterogeneous than Pakistan, but India has been kept in one piece by the noise and chaos of her democracy.”
Why then have >recent events at the Jawaharlal Nehru University fanned such a seething rage against dissent in India? What has caused the majority to react with fear and loathing to mere slogans that have been heard for decades in some parts of the country? Who are those who have benefitted from the raising of temperatures of discussion, to the point where dissent from the majority narrative is seen as anti-national? When does a protest tip from discontent against government into sedition against the nation? Is the national consensus now veering towards a sullen silence, lest any expression of doubt be construed as support to those who seek India’s balkanisation? Is the Indian nation so fragile that it can only be held together by strong leaders benevolently administering the authoritarian structure of a police state? Is our national identity of such a loose character that it needs to be shrouded in a cloak of anodyne conformity?
Dissent is not anti-national. This nation has been built on dissents expressed at crucial times in its history. Kautilya dissented against the Nandas of Magadh, who were complacent in the face of Alexander’s invasions. He created the Mauryan empire. The Buddha dissented against the orthodoxy of his times, and the eightfold path stood revealed. Adi Shankara dissented against the fading of sanatana dharma and resurrected it. Shivaji dissented against the kingdoms of the Deccan and the might of the Mughal empire to lay the foundation of the Maratha empire. The dissent of the soldiers at Barrackpore and Meerut led to the First War of Independence in 1857. A long line of dissenters thereafter, from Lokmanya Tilak to Bose, Nehru and Gandhi, gave us our path to an independent India. Dr. Ambedkar, a man who dissented from even Mahatma Gandhi, gave us a Constitution that has endured all these years.
Our Republic has seen its own share of dissenters whose discordant dissent of the day has led to the wisdom of the morrow. C. Rajagopalachari’s opposition to Soviet-style planning came to fruition when P.V. Narasimha Rao and Manmohan Singh dismantled the licence quota raj. Jayaprakash Narayan’s call for total revolution led both to the imposition of Emergency as well as the consensus against a dictatorship.
Justice Khanna’s reminder
During the Emergency, >Justice H.R. Khanna dissented in the ADM Jabalpur case and held that the right to life was inherent in humans and not a gift of the Constitution which could be suspended. The judgment cost him the office of the Chief Justice of India. A grateful nation, however, ensured that his portrait hangs in the Supreme Court’s courtroom 2, over which he last presided. He forever epitomises Charles Evans Hughes dictum, “A dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day.”
A democracy without a dissenter in it is impossible. Free men, in the exercise of free thought, will give vent in free speech. No matter how abhorrent the thought, or its manner of expression, a mature democracy will tolerate it, and even encourage its publication. It is better for an imperfect thought to be voiced and rejected in the marketplace of ideas, than for it to fester within the warehouses of inexpressible thought. After all there is no greater idea of democracy than free men, freely and voluntarily, committing to the requirements of citizenship of a free country. Only totalitarian regimes suppress dissent and dissidents. Only a country not yet rid of its colonial hangover of a government that commands and controls, labels dissent as seditious. A truly free nation will confidently view even its advocated destruction as a bad idea that will fail in the marketplace of ideas. This is my idea of India, secure in its place among the great nations of the world, confident in its destiny. Dear reader, is it your idea, as well?
(Sanjay Hegde is a senior advocate of the Supreme Court.)