Dealing with the Discourse on ‘Urban Naxals’ and ‘Anti-Nationals’
iasparliament
February 14, 2019
What is the issue?
An Additional Sessions Judge in Punjab sentenced 3 young men to life in prison under an Indian Penal Code (IPC) provision on “waging war against the government of India”.
With constitutional principles being increasingly compromised for upholding the majoritarian rhetoric, it is crucial that courts remain free of the current discourse on ‘urban Naxals’ and ‘anti-nationals’.
Why is the judgement disputed?
The convicted men did not commit any physical violence, and nobody was harmed in any way.
They were not caught in possession of weapons too.
They were not overheard planning any specific terrorist attack, nor were they on their way to commit one when they were apprehended.
The men were only caught with literature supporting the cause of Khalistan, a few posters that did the same, and some Facebook posts on the subject.
The Additional Sessions Judge held that Facebook posts amounted to “direct incitement of violence”.
But mere possession of revolutionary literature is insufficient to sustain a conviction and hence, the verdict is likely to be reversed.
The judgment indicates an apparent disregard for the constitutional and other safeguards enjoyed by a citizen.
What are the safeguards in place?
Constitutional - A key fundamental right - Article 19 guarantees, among other things, the freedom of speech and association.
The state may impose “reasonable restrictions” upon this freedom.
But the Supreme Court has articulated the precise circumstances under which such restrictions would be “reasonable”.
Judicial - In the famous 2015 judgment in Shreya Singhal case, the court struck down Section 66A of the Information Technology Act.
[Section 66A provides punishment for sending offensive messages through communication services.]
The court made it clear that speech could be punished only if it amounts to 'direct incitement to violence'.
This is decided in relation with the provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Unlawful Activities (Prevention) Act (UAPA).
The court cautioned that vaguely-worded provisions of these statutes would have to be read narrowly and precisely, and in accordance with the Constitution.
E.g. “membership” of a banned organisation (punishable under the TADA and UAPA) was to be understood as being limited to “active membership”
Everything short of that (incitement to violence), including “advocacy” of any kind, is protected by the Constitution.
Tradition - India has long had a notable tradition of civil liberties.
In the early 1920s, Mahatma Gandhi opined that the freedom of association was truly respected when assemblies of people could discuss even revolutionary projects.
Simply, in a pluralist democracy, no one set of ideas can be set as the universal truth and enforce its position through coercion.
Indeed, the Supreme Court’s “incitement to violence” standard is in terms of this basic insight about civil liberties in a democracy.
What is the larger significance of the case?
In the last few years, a discourse has arisen which projects a set of oppositional ideas as “urban Naxal” and “anti-national”.
Notably, neither “urban Naxal” nor “anti-national” is a term defined by law.
These terms have nothing to do with 'incitement to violence' or creating 'public disorder'.
In this context, the judgment comes in a series of instances when court has abandoned constitutional values in favour of a majoritarian rhetoric.
So, beyond recognising that the judgment is flawed, it is high time that the higher courts are aware of a dangerous moment for the judiciary.
It is crucial that the courts remain free of the current discourse that put life and personal liberties of citizens at stake.
