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AUGUST 9, 2017

‘Today, we do not talk of inclusive nationalism’

Interview with Former Chief Justice of the Delhi High Court Ajit Prakash Shah – The Hindu Newspaper

In your M.N. Roy Memorial Lecture on ‘Free Speech, Nationalism and Sedition’ this year, you began with his words and said Roy’s views on nationalism and its attendant dangers still resonate today. What worries you?

  • If we restrict our understanding of nationalism, we ignore the multiplicity of views that exist. Nazism and fascism were both ugly manifestations of nationalism. They were irrational and excessive. In contrast, we have Gandhi’s and Nehru’s nationalism, which was anti-colonial and sought to be all-inclusive; it was not based on religion.
  • Today, in India, we do not talk of inclusive nationalism. What we have is a situation of enforced cultural nationalism. It is a culture of hate that is being perpetrated in the name of nationalism.

You posed a question on the defining characteristic of a nation, whether it’s the territorial boundary or the people. What does nation mean to you?

  • In a world that is increasingly international, where identities of ordinary people have intermingled so greatly that they are no longer distinguishable from one another, it becomes hard to defend the idea of a nation based only on territorial boundary. Indeed, as M.N. Roy put it, the idea may even well be regarded as an “antiquated cult”. If we allow territorial identity to overwhelm our narrative, we may regress into a situation where people become blinded by a nationality driven by irrationality, which in turn may have extreme consequences.
  • We are in a situation today where any criticism of certain offices is branded as anti-national and sedition. Whether it is any wrongdoing, fake encounters in the Northeast, even speaking about these is enough to label you seditious.
  • The [Supreme] Court agrees that mere criticism is not sedition. But that does not prevent prosecutions from taking place. Any dissent is taken as sedition. This tendency is very disturbing.
  • Gandhi said that we cannot expect the law to manufacture affection for the state, that we must allow disaffection to be fully expressed unless it incites violence. This is also what Kedar Nath Singh v the State of Bihar (1962) The law is clear that mere sloganeering is not enough, and has to be accompanied by a call for violence.
  • The broad scope of Section 124-A (of the IPC) allows the state to go after those who challenge its power

You are defending free speech, yet we are all aware of the restrictions imposed by Article 19(2) of the Constitution. Has the time come to review it?

  • The court has always said the restrictions to free speech must be reasonable and not excessive or arbitrary. And free speech itself has always been linked to democratic ideals by the court.
    • For example, in Anand Dighe’s case (in 2001, relating to the prohibition of performance of the Marathi play Mee Nathuram Godse Boltoy ), the court highlighted that respect for, and tolerance of, a “diversity of viewpoints” was essential to sustain a democratic society and government.
    • Similarly, in Anand Patwardhan’s case (in 1996, relating to the refusal of Doordarshan to telecast his documentary film In Memory of Friends ), the court said that the state cannot prevent open discussion, regardless of how hateful such discussion was to the state’s policies.
    • But the Supreme Court put it best, perhaps, in Rangarajan v P. Jagjivan Ram (1989), when it said that “in a democracy it is not necessary that everyone should sing the same song”.
  • The response to criticism is not to shut it down, but to engage with, and respond to, the speaker. Free speech must be countered by more speech, not by acts of moral vigilantism. Such acts have absolutely no place in our constitutional polity and democracy.
  • What prevents us from striking down the law on sedition?
    • The immense power that the state wields through this provision makes it difficult to let go of the law entirely.

You said that the interim order of the Supreme Court on the national anthem has actually undermined patriotism. How?

  • The right to free speech and expression also includes the right not to speak or express ourselves. However, under the guise of “law”, with this order, the court has now restricted our fundamental rights. Making something compulsory, like standing up when a national anthem is sung, undermines the very meaning of that action, and the respect that is normally accorded to it. It is a form of what I would call “conscripted nationalism”.
    • The Madras High Court has replayed this with its recent order that ‘Vande Mataram’ must be sung regularly in educational institutions and elsewhere, including workplaces like factories and offices! The courts have failed to recognise that such actions — of singing or standing up — are now no longer genuine acts of nationalism. They have now become a performance. People now sing or stand not because they truly respect the sentiment that these songs or poems convey, but because they are afraid of being beaten up. In effect, orders like these have actually undermined patriotism amongst fellow Indians.
  • The judiciary is supposed to be the protector of individual liberties. It is indeed disturbing that it should itself mandate such restrictions.

Do you see this as a consequence of majoritarianism?

  • I strongly believe that actions like these — preventing people from eating the food they want, effectively forcing a life choice on them — undermine any feelings of nationalism and unity. This is nothing but enforced cultural nationalism.
  • Enforced nationalism cannot promote true culture. People and cultures, regardless of belonging to a particular class or geography, can truly grow and evolve only if they can transcend all social and territorial limitations.

The right to privacy is currently being looked into by the Supreme Court. Is it absolute?

  • The right to privacy has historically been read under Articles 19 and 21 of the Constitution by the court.
    • From Govind v State of Madhya Pradesh (1975) to NALSA v Union of India (2014), the Supreme Court has repeated the existence of a right to privacy under the Constitution.
    • One concept emerging throughout is that the right to privacy cannot be absolute. It must be restricted by law, and must be within the parameters of Article 19(2).
  • The court itself, in the latest hearing, has observed that one of the immediate consequences of declaring privacy a fundamental right could be the creation of a corresponding obligation on the government to bring in a regulatory framework.
  • There are many kinds of privacy: privacy of space, privacy of behaviour, privacy of decisions and privacy of information. Privacy even exists in the right to be left alone, or the right to be forgotten. Underlying all concepts of privacy is the principle of dignity.
    • The lawyers in the present matter have argued that it would be more proper if the court, after recognising the right, does not define the contours of this right, and decides its delineation on a case-to-case basis instead. I agree. This is a case involving the citizen versus the state. The court must stand by the citizens.

Food for action

  • The National Food Security Act, 2013, has met with prolonged political indifference, but there is some hope now since the Centre has been asked by the Supreme Court to ensure that States implement key aspects of the progressive law.
  • The directives in the Swaraj Abhiyan case underscore the depressing reality that several State governments have not met key requirements in the legislation which empower the common person in securing subsidised food.
  • Sections 14, 15 and 16, which require the setting up of a grievance redress mechanism and a State Food Commission with responsibility to monitor the implementation of the law, have been heeded only in name, as in Haryana, or not at all.
  • As the court has pointed out, Article 256, which casts a responsibility on the States and the Union to ensure compliance with laws made by Parliament, also provides the remedy, as it can be invoked by the Centre to set things right.
  • Unfortunately, the NFSA, which is vital for social security through the Public Distribution System and child welfare schemes, has suffered due to a lack of political will.
  • As a law with egalitarian goals, the NFSA should have set the floor for food security through the principle of universal access, though not every citizen would need it.
  • There is great merit in providing highly subsidised foodgrains to targeted households chosen by the State governments, with a ceiling of 75% of the population in rural areas and 50% in urban areas.
  • But the system should have in-built mechanisms to allow for the entry of new households that suddenly find themselves in financial distress, while others can exit it based on changed circumstances. Such arrangements can be made only when there is a full-fledged, independent machinery in the form of a Food Commission, and district-level grievance redress, besides social audits.
  • All these are provided for under the Act, but have been ignored.
  • Modernisation of the PDS, with the use of information technology, could incorporate such dynamic features to the supply of subsidised food to those who need it, and eliminate deficiencies and fraud.