RE: [ ::: ♥Keep_Mailing♥ ::: ]™ HOW TO GOVERN DISSENT

Upendra Baxi's words are a sign of his wisdom and Sharma's comments on it indicates the opposite

T.M

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Date: Tue, 1 Mar 2016 12:29:55 +0000
From: sharmaprema@yahoo.co.uk
To: keep_mailing@googlegroups.com
Subject: Re: [ ::: Keep_Mailing ::: ]™ HOW TO GOVERN DISSENT

Sir What has happened in IRAN, in Kashmir  and what is happening in other states where Hindus are tolerating gives an honest Indian to think that India should not slip from our hands from where we will be driven out as PARSEES r from elsewhere or Pandits r from Kashmir. If such thing r not to happen at least let us make some noise , which is of no use when others rule us. Finally the fact must be coming out if we r true to our country . Now nothing has gone wrong for oter parties to make a hue and cry as if we r doomed by doing so. Whatever has to happen will happen. Pl be patient . 

On Monday, 29 February 2016, 0:56, Mohamed Jaffer <mjkassam@gmail.com> wrote:

print

How to govern dissent

Written by UPENDRA BAXI | Updated: February 27, 2016 12:28 am

 

Demonstrators shout slogans as they hold placards during a protest demanding

 the release of Kanhaiya Kumar, a Jawaharlal Nehru University (JNU) student union

 leader accused of sedition, in New Delhi. (Express photo by Oinam Anand)

I have had the privilege of serving two universities — South Gujarat and Delhi — 

as their vice-chancellor and teaching law for about three decades in India.

 I have had a ringside view of politics within and outside the campus. I have

 been witness to remote-controlled party politics on the campus, 

especially during the Mandal and Kamandal days in Delhi.

But never before had an entire university been declared by anyone —

 whether a member of the ruling party, government, or the opposition — 

as "anti-national". Never before has the police entered the university, save the

 dark days of the Emergency, without the permission of the VC or the head of 

the concerned institution. Nor were presidents and office-bearers of student 

unions arrested, or media (and others) manhandled by members of the bar in and

 near the court compound, or the media asked with violence not to do its reporting.

 Never did members of the armed forces seek to return their degrees.

Never before were street marches held against democratic dissent.

 Never before did citizens of neighbouring areas surround the entrance to a 

campus seeking to intimidate its denizens. And at no time have popular or party 

patriotic sentiments ran so volatile as even to ask a politician father to "kill" his 

student daughter for participating in an "anti-national protest" 

(as a BJP national secretary is reported to have said recently in Chennai).

Obviously, patriotic sentiments are running high to a point of public frenzy; 

yet never was so pressing the need for a reasoned dialogue as now. Do the

 present happenings around and within JNU, the protest and 

violence, portend any lack of patriotism on our campuses?

Constitutionally sincere citizens agree on two things: First, any assailant of unity, 

integrity and democratic sovereignty ought to be dealt with according to the law; 

and second, intimidation and violence, especially aggression or predation — 

moral vigilantism of any sort — have no place in any pursuit of rashtra bhakti. 

Both violate the basic structure, fundamental rights, directive principles and 

basic duties of all Indian citizens prescribed explicitly by the Constitution. 

Fully flouted, thus, is constitutional pluralism — the fundamental duty of all Indian

 citizens to preserve our "composite culture", "spirit of critical inquiry and 

social reform", and "excellence" in all walks of life under Article 51A.

Some deplorable anti-India utterances were made at a rally on the JNU campus.

 Who made them and why can only be found out by an authoritative inquiry.

 Currently, a plethora of inquiries and investigations are underway: 

JNU, NHRC, police, Bar Council, and Supreme Court and Delhi High Court. 

These different modes of inquires are all necessary, provided they cater to justice, 

and not obfuscate the causes, career and consequences of the violence and intimidation.

The protest and counter-protests raise basic concerns about what 

Jürgen Habermas called "constitutional patriotism", different from "statist patriotism"

(what Gandhi called "manufacturing affection for the state"). 

Fidelity to constitutional purposes alone can help us to discern public reason. 

Constitutional norms affect us all, stimulate a larger debate, help discriminate 

rational arguments against irrational ones and bind us to jurally ordained public morality.

May there be different forms of patriotism, each vying with the others? Can each 

political party have its own brand of patriotism and vigilante citizen cadres, and 

what do we do when these conflict and collide? Are ministers bound by the oath under the

 Third Schedule or their own type of patriotism? Should any government, whether 

at the Centre or in a state, be allowed to resile from the duties prescribed by

 constitutional patriotism? Is unbridled popular patriotism to replace constitutional patriotism?

 Not to reason, and act, together may risk the demise of constitutional democracy as we know it.

We have also to learn the simple truth uttered by Karl Mannheim in 1940 

that in a "democratic mass society, especially with great social mobility,

 no group can succeed in deeply influencing the whole of society". When

 different elites compete for power and influence, it is a costly error to think that 

political leadership alone can impose its will on society. Indeed, 

Prime Minster Narendra Modi rightly asked us to affirm the motto: 

"Sabka saath, sabka vikas" (roughly, inclusive constitutional 

development is the only worthwhile development).

Accordingly, sedition should never be a way of governance of dissent. Our SC

 has ruled early that every citizen has a right to discuss and dissent; only incitement 

to violent or criminal action stands outlawed. Shouting slogans that are not 

demonstrably anti-India, and conducting and joining protest marches, are 

regarded by the court as an integral aspect of freedom of speech and expression

 and democratic dissent. This law was further elaborated in the 

Khusboo (2010) and Shreya Singhal (2015) cases.

The law forbids recourse to the offence as part of an ensemble of governance;

 acquittal on sedition charges (lumped under other IPC offences by the National 

Crime Records Bureau) is the rule rather than the exception. But a charge of 

sedition and persevering in prosecution have a demonstrably "chilling effect" 

(in the SC's words in 2015) on the democratic right to disagree and dissent. 

Our Constitution doesn't allow free citizens to be pre-trial detenus for years on end — 

punishing non-violent dissent is constitutionally offensive, even when it may be 

politically expedient to preserve the colonial law after more than six decades of the republic.

Even if such a law is to remain in the statute book, its exercise by the police and

 executive must be reasonable under Article 14. Certainly, it's time to consider 

decriminalising speech-related conduct, making such offences bailable and negotiable, 

prescribing a regime of prior sanctions, and providing standard-based objective 

satisfaction for prosecution. The march of law should forthwith prohibit all forms of

 violent vigilantism and simultaneously move towards a fresh law narrowly tailored

 to prevent threats to the unity of a sovereign, democratic, secular and socialist India, 

avoiding at the same time a "chilling effect" on free expression.

Copyright © 2016 - The Indian Express [P] Ltd. All Rights Reserved

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