Peaceful protestors are not traitors or anti-national, say Bombay HC and Justice Chandrachud

Peaceful protesters cannot be termed as traitors or anti-nationals merely because they oppose a law, which they consider inimical to their interests – this is the verdict of a two-judge Bench of the Mumbai High Court upholding the right of citizens to agitate.

Using state machinery to curb dissent amounts to suppression of the conscience of the nation – said Justice DY Chandrachud while delivering a lecture in Ahmadabad on Saturday.

Rule of law, not rule by majority

In a severe stricture against misuse of power based on majoritarian mindsets, High Court judges M.G. Sewlikar and T.V. Nalawade said in a democratic republic like India the Constitution provides for “Rule of Law” and “not Rule of Majority”.

Making a direct reference to the rights of minority communities, the judges said a section of citizens who may be of a particular religion like Muslims are fully entitled to feel that a particular law is against their interest and that such an Act needs to be opposed.

It is a matter of their perception and belief.  “If the persons agitating believe that it is against the ‘equality’ provided under Article 14, they have the right to express their feelings as provided under Article 19 of the Constitution of India”.

”When such a matter comes before the Court, the Court cannot go with the presumption that only that particular community or religion has interest in opposing such law”.  Nor can those who agitate be branded as traitors and anti-nationals only because they want to oppose that law.

The judgment emphasizes the point further:  “Courts are bound to see whether these persons have the right to agitate and oppose the law.  If the Court finds that it is part of their Fundamental Right, it is not open to the Court to ascertain whether the exercise of such right will create a law and order problem.  In such cases, it is the duty of the Government to approach such persons, hold talks with them and try to convince them”.

Referring to forceful action against even peaceful agitations, the judges say:  “The government and the bureaucracy need to be sensitive when exercising powers given by law.  Unfortunately, many laws which ought to have been scrapped after getting Freedom are still continuing and the bureaucracy is exercising such powers against the citizens of free India”.

In a telling rebuke, the judges add:  “This Court observes with all possible seriousness that officers from bureaucracy who are vested with powers to use force need to be sensitized by giving them proper training on Human Rights which are incorporated as Fundamental Rights in the Constitution”.

Justice Chandrachud, delivering the 15th Justice PD Desai Memorial Lecture on the theme of “The Hues That Make India”, expressed very similar views.  He said the makers of the Indian Constitution had rejected the ideas of ‘Hindu India’ and ‘Muslim India’ but wanted to build a ‘Republic of India’ based on pluralism.

Mincing no words, he said:  “No single individual, no single institution and no single party can claim a monopoly over the ‘Idea of India’.  There is an obligation on all to protect the plural identity of the republic”.

A democratically elected government only serves as a legitimate tool for development and social coordination, but it can never claim a monopoly over the values and identities that define our plural society.

He added: "Blanket labeling of dissent as anti-national or anti-democratic strikes at the heart of our commitment to protect constitutional values and the promotion of deliberative democracy".

In Justice Chandrachud’s view "our differences are not our weakness – transcending differences by recognizing our shared humanity is a source of our strength".  The Founding Fathers had placed trust on the future generations to celebrate diversity.

The "layered Indian identity", he said, “is what makes us Indian and must be central to our understanding of pluralism and efforts to foster it”.

Turning to police crackdowns, he warned:  "Employment of state machinery to curb dissent through force instills fear and creates a chilling atmosphere on free speech -this violates the Rule of Law and distracts from the constitutional vision of pluralist society".

Safety value of democracy

Describing dissent as a “safety valve of democracy”, the sitting Supreme Court judge warned that & the destruction of spaces for questioning and dissent would destroy the basis of all growth -- political, economic, cultural and social”.

He added that silencing of dissent and the generation of fear in the minds of people, go beyond the violation of personal liberties.  "The attack on dissent strikes at the heart of a dialogue-based democratic society”.

Hence it is the obligation of a State to ensure that it deploys its machinery to protect the freedom of speech and expression and not to instill fear or curb free speech.

“Minority opinions should not be strangulated.  Every outcome should not be based merely on numbers but on a shared consensus".

Justice Chandrachud said the "true test" of a Democracy is its ability to ensure the creation and protection of spaces where every individual can voice their opinion without the fear of retribution. The "great threat to pluralism" is the suppression of differences and silencing of popular and unpopular voices offering alternative or opposing views. "Suppression of intellect is the suppression of the conscience of the nation".