The arrest of Jawaharlal Nehru University Students’ Union president Kanhaiya Kumar on charges of sedition is certainly excessive. Indeed, the Narendra Modi government’s reaction to the unsavory happenings at varsity in Delhi is unjust and unwarranted. While it is true that the people shouting pro-Afzal Guru and anti-national slogans on the campus premises are not angels, it is equally true that the right to freedom of expression should be respected so long as it does not harm others. This, by the way, is also the correct legal position on free speech in India.
Correct, for Justice Markandey Katju (retired) favorably quoted the ‘imminent lawless action’ doctrine—which recognizes absolute freedom of expression—in Sri Indra Das vs. State of Assam, 2011. The imminent lawless action doctrine was enunciated in Brandenburg vs. Ohio, 395 US 444 (1969). Further, as Katju asserted in an article in The Hindu (September 8, 2015), the Brandenburg judgment, among other verdicts of the US Supreme Court, is “part of the law of the land in India too.”
According to the Brandenburg verdict, “The Constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis added).
The keyword is ‘imminent.’ A curb is valid not only if a speech, or any other form of expression, is directed to incite or produce lawless action but also produce it immediately. As John Stuart Mill wrote in his treatise On Liberty, “opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard. Acts, of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavorable sentiments, and, when needful, by the active interference of mankind. The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people.”
Mill would not accept any curbs on the freedom of speech except in rare circumstances—to “an excited mob” against corn-dealers “before the house of a corn-dealer.” That is, when the harm to life, limb, and property of the targeted person is imminent. But then, in such a situation, haranguing an angry mob is incitement to violence rather than an expression of opinion and there is nothing improper in penalizing incitement to violence. At any rate, such penalizing would be against felonious intent and action rather than freedom of expression. When a mafia don orders his henchmen to eliminate a rival, he is not exercising his right to freedom of expression but triggering off a crime. There is a difference between freedom of expression and crime.
A socialist is not only entitled to his view that private property is theft but also free to express it. He crosses the line only when he convinces, coaxes, or instigates his followers to such an extent and to such an effect that they immediately carry out violent activities. This is the import of the Brandenburg verdict and its consequent acceptance by the Supreme Court.
Quite apart from the abstractions of theory and jurisprudence, there are practical aspects that Bharatiya Janata Party leaders should not lose sight of. First, they expose themselves to the charge of duplicity: why should a party, whose ideology is the antithesis of Macaulayan worldview, should rely so heavily on an illiberal law framed by the famous imperialist (377 is another instance)?
Second, there can be retaliation. If the BJP regime can slap sedition charges against the supporters of Afzal Guru, the Congress and Left governments can also do the same against saffron activists.
And, finally, unrestrained freedom of expression exposes many unpleasant characters. I believe that the anti-India slogans at JNU can greatly harm the cause of the Left. If television reports are anything to go by, the incident not only incensed the students’ wing of the BJP but also common students: no amount of casuistry can justify the Islamist, traitorous cause the Guru championed. Similarly, if the likes of Akbaruddin Owaisi are allowed to say what they want to, they will end up exposing themselves.
Unfortunately, the BJP top brass got swayed by sentimentalism. So Home Minister Rajnath Singh said, “If anyone raises anti-India slogans and tries to raise questions on the nation’s unity and integrity, they will not be spared.” Human Resource Development Minister Smriti Irani took recourse to theatrics: “nation can never tolerate any insult to Mother India.”
Unsurprisingly, we have a situation in which the Left has turned the tables on the saffron brigade. Almost the entire Opposition has got united and started condemning the Modi government for excess. Meanwhile, after Priya Pillai and Rohith Vemula, the Left has got another hero—Kanhaiya Kumar. All thanks to the BJP leaders’ penchant for cant. Such are the wages of sanctimony.