Let us briefly sum up the conclusions of our last post on sedition:
In Kedar Nath Singh, Section 124A was challenged as being violative of Art. 19(1)(a). Naturally, the Court could not have found that the test for sedition was broader than what Article 19(2) permitted. Nonetheless, there were three ways in which the Court could have effectively hamstrung any Article 19(2) barriers, and allowed the executive a free rein in the application of the sedition law:
(a) The Court could have held that seditious speech does not come within the protection of Article 19(1)(a) at all (as it did for commercial speech in Hamdard Dawakhana and – as we shall see subsequently – it has done in a case involving the flying of the Indian flag).
(b) The Court could have created a legal fiction by holding that inciting disaffection, or feelings of enmity, or of disloyalty (as per S. 124A) is deemed to proximately disrupt public order
(c) The Court could have weakened the public order test itself, holding that feelings of disaffection could conceivably affect public order by promoting disobedience towards the government, and that that is enough, considering the wide import of the phrase “in the interests of public order” (an argument used too many times to count, on behalf of the State).
As we have seen, the Court came dangerously close to both (b) and (c), but ultimately affirmed the existing interpretation of Article 19(2), and by implication, affirmed the strong protection of free speech. The law on sedition, therefore, is clear and unambiguous. Legally, there is no doubt that instances such as those of Aseem Trivedi, the 8000 sedition cases filed against the protesters at Koodankulam, Arundhati Roy’s arrest, and countless others are blatant abuses of law. It is submitted that a legislation that serves no discernible purpose (as argued in the previous post), and is regularly used as a tool for political persecution, has no business being on the statute books. It must go.
Let us now, however, examine another issue that arose out of the Kedar Nath Singh case, but one that has received comparatively little attention. In Paragraph 36, the Court stated:
“Now, the expression “the Government established by law” has to be distinguished from the persons for the time being engaged in carrying on the administration. “Government established by law” is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted.”
This is framed somewhat curiously. Presumably, my inciting disaffection against the ruling UPA Government does not amount to sedition, because the UPA only consists of people “for the time being engaged in carrying on the administration.” Who – or what – then, do I have to incite disaffection against in order to qualify as seditious? Is it the government as an abstraction, as a concept? Perhaps my target must be the institution of government, as governance is practiced in India – in other words, (liberal?) democracy – that is, liberal democracy embodied by the elements of our Constitution’s basic structure.
We may now describe the alleged paradox at the heart of liberal political theory. As we have discussed in many of the previous posts, political liberalism’s central tenet is neutrality – neutrality between competing conceptions of the good, between opposite ideas of what Rawls calls “comprehensive theories” – that is theories about what is good, true and beautiful, and how one ought to live one’s life. Now, if that was true, then political liberalism itself is merely one comprehensive theory, and cannot take either epistemic or moral priority over the others. And that, in turn, would imply that if I use liberal institutions to assume political power, and then systematically dismantle those very institutions, then liberalism itself gives no argument to stop me – for that would amount to privileging one conception of the good (liberalism itself) over others (say, fascism).
States that claim to be politically liberal have struggled with this issue for years. In the United States, Justice Holmes’ “clear and present danger” test, enunciated in Schenck v. United States, was notoriously used by the Supreme Court during the McCarthy era, to suppress communist-leaning entities (see, in particular, Dennis v. United States), before being narrowed to an “incitement to imminent lawless action” test by Justice Douglas in Brandenburg v. Ohio. It is interesting to note that Dennis, in particular, involved the advocacy of a philosophy that is explicitly hostile to political liberalism, but because of American free speech philosophy’s commitment to content neutrality, the ground of the decision, ultimately, was something akin to preserving public order.
Now compare this with a decision of the European Court of Human Rights (Refah Partisi v. Turkey) and the Israeli Supreme Court (Neiman v. Election Committee), and Article 21.2 of the German Basic Law. Refah Partisi was a Turkish political party that claimed, as part of its manifesto, its commitment to the abolition of secularism, the imposition of sharia law and the creation of a theocracy in Turkey. The Turkish Constitutional Court dissolved the party. The case went up in appeal to the ECHR, which held that if a political party wishes to change the legal and constitutional structure of the State, “the change proposed must itself be compatible with fundamental democratic principles.” Sharia law, it held, was not so compatible, and it also held that political parties could be forestalled from such action by their dissolution before they came to power, as long as the need was perceived to be urgent. In Neiman, the Israeli Supreme Court, apparently influenced by John Rawls’ insistence on the need to “tolerate the intolerant”, set a higher bar of “negating the existence of the State of Israel as one of its goals” as sufficient grounds for dissolving a political party. How a political party, using political mechanisms to assume political power can simultaneously negate the very existence of the State that it seeks to govern is, however, somewhat unclear. And lastly, consider Article 21.2 of the German Basic Law, stating that parties who “seek to undermine or abolish the free democratic basic order” are unconstitutional.
Are the ECHR and Israeli decisions, and German Constitutional provision, then, philosophically justified? Laurence Tribe is clear that they are not, arguing that:
“It should be clear that no satisfactory theory of free speech can presuppose or guarantee the permanent existence of any particular social system. For example, a free speech theory must permit evolution from a society built on the ideals of liberal individualism to a society aspiring to more communitarian visions – just as it must permit evolution from communitarianism to individualism.”
Rawls and Popper, on the other hand, argue strongly that in order for a liberal society to survive, it must set limits on what it is willing to tolerate. But this leads precisely to the paradox that we outlined above – and the mere statement that liberalism will be destroyed by untrammeled toleration of the intolerant, while emotively powerful, for the reasons described above, remains philosophically unsatisfactory.
Joseph Raz does indeed take a stab at a philosophical justification. Eschewing neutrality as the defining feature of liberalism, he focuses instead on autonomy – that is, the range of worthwhile choices open to an individual to make towards the shaping of his life. For Raz, coercion (read, banning of free speech) amounts to a loss of autonomy, since it restricts a person’s range of choices; hence, it can only be justified on the grounds of a corresponding autonomy gain. A Razian would thus argue that if a thriving democracy provides maximal autonomy for all its citizens, than the autonomy loss in restricting speech for the purpose of preserving the democratic order is justified. Of course, one may have philosophical disagreements with Raz’s conception of autonomy, with his distinct flavour of autonomy-utilitarianism, but that is a debate for another day.
These issues have not yet – to my knowledge – been tested on the touchstone of the Indian Constitution. Perhaps, one day, for instance, if a party with the agenda of turning India into a ‘Hindu Rashtra‘ comes to power, they will become particularly pertinent. For now, these arguments form an important piece of the puzzle in determining whether the Indian Constitution is committed to political liberalism – and whether it should be.
Constitutional Law and Philosophy 