THE FADING RIGHT OF “DISSENT” - AN INVESTIGATION

This article has been authored by Anna Mary Mathew, a third-year student at Tamil Nadu National Law University.

India, a democratic country has guaranteed its citizens to certain fundamental rights in its constitution. Article 19 of the Indian Constitution ensures that the citizens have 6 rights, out of this what we’ll be looking into is the right to freedom of speech and expression (Article 19(1)(a) but this right is not an unfettered right. It is subject to “reasonable restrictions” as defined in Article 19(2), if act against “the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence” arises then it can be restricted. However, in the recent years reasonable restriction has been unreasonably used. Where can the line be drawn to, “charge an individual and to raise one’s opinion”?

In the World Press Freedom Index, India's rank is 142 among 180 countries. It has dropped 2 ranks since 2019, this is a disappointing rank for any democracy. It is however, not that surprising as the clamp down on communication internet and phone services in Kashmir in 2019 could have worsened India’s score. A committee set up by the Narendra Modi government to improve the position of India in the World Press Freedom Index have concluded that these indexes are a product of “western bias” and it is “not in line with the ground situation”. But is this the actual truth? or is the condition of India deteriorating as each day is passing by?

The fundamental “Right to dissent”

According to the Oxford Dictionary the word dissent means having or expressing opinions that are different from those that are officially accepted. The right to dissent is mentioned under Article 19 of the Indian Constitution. It is inherently present in Article 19(1)(a), which speaks about the right to freedom of speech and expression and article 19(1)(b), which speaks about the right to peaceful assembly. The right to dissent has been recognised by the Supreme Court in various judgements. In the case of Shreya Singhal[1], the Supreme Court had observed that an innocent speech cannot be considered as fundamentally wrong on the grounds suggesting that it was grossly offensive or causing inconvenience. In the case of Romila Thapar[2], justice DY Chandrachud raised a dissenting opinion, he had stated that the symbol of a vibrant democracy lies with the individuals who have a different opinion from the government. They should have the freedoms guaranteed by the constitution. This shows us that the courts acknowledge that Right to dissent as a part of Article 19.

Romila Thapar & Ors. V. Union of India, the court has stated that the right to dissent is a core principle of democracy. In a democratic form the rights of the citizens are not nearly restricted to casting a vote they also have the right to raise an opinion of their own and this opinion even if it might not be the same as that of the majority, is still an opinion. Therefore sufficient recognition and protection should be to ensure to these rights to dissent.

Dissent is the bedrock of democracy. If a democracy has to grow it should provide its people with the liberty to dissent. A democracy might be ruled by the government that is elected by the majority. However, majoritarianism is the antithesis of democratic form of government. Justice Deepak Gupta in the event “Democracy and dissent” organised by the Supreme Court bar association had stated that criticisms of the executive, judiciary, bureaucracy and the armed forces cannot be termed as “anti-national”.

Dissent & Anti-Nationalism

How can all acts of criticizing the government be termed as anti-nationalism. It is very horrid that any act resorted by an individual to criticize the violation of his or her rights can potentially lead that individual to be charged under UAPA or the Unlawful Activities (Prevention) Act, 1967.

According to Section 13 of the UAPA Act, an individual will be punished for indulging in an “unlawful activity” and will be punished for an imprisonment of a term up to 7 years. The term unlawful activity has been defined under section 2 of UAPA. It is stated that any action in respect of claiming or inciting the cession of a part of the territory of India or is intending to disrupt the sovereignty and territory of India or in respective causing or intending to cause disaffection against India, can be termed as an unlawful activity.

To add more fuel to the fire, on August 8 2019 the president gave assent to amend UAPA, 1967. The most prominent part of this amendment is that, the government is provided with absolute discretion to term an individual as a terrorist. If the government decides to term an individual as a terrorist then that person has very minimal to no recourse. The government can solely decide if an individual has any involvement in terrorism. Before the amendment was raised the government had to provide reasons as to why it is going to term an individual as involved in an act of terrorism, however with this amendment the government does not have to provide any reasons. This is outrightly violative and there is an urgent need for the judiciary to look into this.

The total number of pending cases in India charged under UAPA in 2019 is 5,134. From 901 new cases in 2017 it has increased substantially to 1,226 cases in 2019. The government fails to realise that the traces of blackmark for charging an individual with UAPA is permanent.

In the charging of UAPA a clear patterns can be identified, those who speak out against the government are being persecuted. A plethora of cases have arose with people being charged under UAPA for speaking up against the Citizenship Amendment Act, for raising their voice against being arbitrarily detained in Kashmir, for supporting the farmers bill, the list is endless. When the matters are scrutinised, the irony of the same becomes more prominent. It can be identified that all these cases have one common allegation, that is raised against them, that these people are “influencing”, “instigating” or having a potential to “create trouble” and are “hurting national interest”.

Conclusion

The zero tolerance policy adopted by the government is the matter that is being constantly debated. However, this simple right to debate in itself is curtailed. An individual has to keep in mind that a citizen’s right does not end by merely electing the government, in fact his right begins there. He has every right to comment, dissent and raise his voice for what he believes is right provided he doesn’t break the law or encourage strife. Therefore, the right to dissent is an inherent right and this is being constantly overlooked by the government and all other institutions.

As human beings we are bound to have varying viewpoints on multiple issues. My interests might not coincide with the interests of another man. The minute we overlook these differences and stand together, we have national integrity. However, in nowhere is it mentioned that anyone’s opinion is below another and it should be shun down. In fact only if people are opinionated we can see various perspectives on one issue and it can contribute to economic growth as well. The current status of India is highly piteous as people are restricted from raising their opinion. This has to stop and people should be allowed to concede or deter from an idea with or without raising their own personal viewpoints.

[1] Shreya Singhal V. Union of India (2013) 12 SCC 73. [2] Romila Thapar & Ors. V. Union of India (UOI) & Ors, (2018) 10 SCC 802.