Justice Deepak Gupta retired as a Supreme Court Judge, on 6 May 2020. A couple of months before he retired, on 24 February he was invited to deliver a lecture at an event organised by the Supreme Court Bar Association. In a hard-hitting, no-holds barred lecture which focused on ‘ The Right to Dissent is the Most Important Right Granted by the Constitution’ he said, “to question, to challenge, to verify, to ask for accountability from the government is the right of every citizen under the constitution. These rights should never be taken away otherwise we will become an unquestioning moribund society, which will not be able to develop any further”. He emphatically stated that, “ Dissent is essential in a democracy. If a country has to grow in a holistic manner where not only the economic rights but also the civil rights of the citizen are to be protected, dissent and disagreement have to be permitted, and in fact, should be encouraged. It is only if there is discussion, disagreement and dialogue that we can arrive at better ways to run the country”.
“There can be no democracy without dissent”, was his constant refrain. He went on to quote a fellow Justice D.Y. Chandrachud who in another speech put the matter very succinctly, saying, “The blanket labelling 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”. Strangely enough, on 23 July in a case regarding nineteen dissident Rajasthan Congress MLAs including Sachin Pilot, a Supreme Court bench headed by Justice Arun Mishra re-echoed the very same words, “ Voice of dissent in democracy cannot be shut down!” Lofty ideal indeed, if only the apex court had remained true to its own dictum, in letter and in spirit! Sadly this is not the case!
Today in India if you show any dissent or dissidence to anything which the regime does- woe to you! There is the midnight knock! One is hounded and harassed, intimidated and threatened; false cases are foisted. There are investigations, your phones are monitored, and your computers are searched. Your premises are raided; income tax starts looking into the returns of your relatives. If you are an NGO and have an authorized account to receive foreign remittances that is cancelled. You are thrown into jail on fictitious and fabricated charges; abused, beaten and subject to all kinds of torture. Your family is put under severe pressure. You can conveniently be bumped off in one of those ‘encounters’. All this and more- the regime uses all existing mechanisms to silence you. It is clear: this regime brooks no dissent.
There are any amount of examples in India today to show how the Preamble to the Constitution of India which promises liberty of thought, expression, belief, faith and worship; and Article 19(1) which guarantee freedom of speech and expression; freedom to assemble peaceably and without arms; and the freedom to form associations or unions- are being trampled upon mercilessly. Justice Gupta reiterates, “these three freedoms are vehicles through which dissent can be expressed. The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree. The right to disagree, the right to dissent and the right to take another point of view would inhere inherently in each and every citizen of the country. When we view all these together, it is more than obvious that the right to dissent is the biggest right and, in my opinion, the most important right granted by the Constitution.”
Strangely enough, words like dissent, or its synonyms like dissidence and protest emerged very often in the context of religious and/or political establishments that were not in sync with the reality or had moved away from the legitimate aspirations of the people. Justice Gupta in his speech drives home the point saying, “if a person does not ask questions and does not raise doubts questioning age-old systems, no new systems would develop and the horizons of the mind will not expand. Whether it be Buddha, Mahavira, Jesus Christ, Prophet Mohammad, Guru Nanak Dev, Martin Luther, Kabir, Raja Ram Mohan Roy, Swami Dayanand Saraswati, Karl Marx or Mahatma Gandhi, new thoughts and practices would not have been established, if they had quietly submitted to the views of their forefathers and had not questioned the existing practices, beliefs and rituals”.
St Ignatius of Loyola founded the Society of Jesus (the Jesuits) in 1540. He had to the face much hostility from the powerful of those times (including the Inquisition) because he dared question practices which he believed were no longer relevant or responded to the cries of the people. He founded an order which was radically different from the existing orders of that time. He even had the audacity to taking education to the common folk, which was during his time a monopoly of the clergy and royalty .A parallel (in the sixteenth century too) can be seen in the life of St Teresa of Avila , who through her relentless questioning and search was able to reform the Carmelite tradition. There are several classic examples of how dissent within established structures, brought about not only fresh thinking but also radical changes.
So at the heart of every vibrant democracy is dissent! So why is the Government afraid of dissent and doing its best to silence everyone who is visible, vocal and critical of them? Hundreds of citizens have signed statements condemning the arbitrary arrests of anti-CAA protestors, “We, the undersigned citizens, have been watching – with anger and dismay – the ceaseless harassment, interrogation and, in many instances, torture of protesters who participated in the recent sit-ins and agitations against the Citizenship Amendment Act (CAA), 2019. Gulfisha, Khalid Saifi, Ishrat Jahan (both are Muslim community leaders), Safoora Zargar (member of the Jamia Coordination Committee) and Meeran Haider (president of the Rashtriya Janata Dal youth wing’s Delhi unit) have been arrested in the last few weeks. Safoora Zargar and Meeran Haider, both students of Jamia Milia Islamia, alongside Gulfisha, have been slapped with the draconian Unlawful Activities Prevention Act (UAPA). Umar Khalid, former student activist of Jawaharlal Nehru University, is also understood to have been slapped with the UAPA for his role in the protests, although the latest statement of a senior police officer suggests that he is still under investigation”.
It is amply clear that innocent persons are being victimized to cover up the violence created by right wing Hindutva groups everywhere. These arrests seem to mark the continuation of a disturbing trend: the BJP government’s practice of covering up the violence committed by Hindutva groups by blaming democratic activists and citizens for the same, and its general disregard for the lives of citizens. Gautam Navlakha, Anand Teltumbde, Arun Ferreira, Vernon Gonsalves and others have been arrested over the Bhima Koregaon violence of 2018, even as its real perpetrators such as Milind Ekbote (a leader of local Hindutva groups) roam free. Although the self-proclaimed Hindu Raksha Dal took responsibility for the armed assault by masked goons on students and teachers inside the Jawaharlal Nehru University (JNU) campus on 5 January 2020, and some of the attackers identified in the videos belonged to the Hindutva student organisation Akhil Bharatiya Vidyarthi Parishad, Union Minister Ashwini Choubey claimed in its aftermath that the “Leftists” had been beaten up “by their own people”.
Then there is the case of poet and activist Varavara Rao, also an accused in the Elgar-Parishad-Maoist links case, who is languishing in jail. Recently a statement signed by more than two thousand intellectuals and other concerned citizens demanded that Varavara Rao be immediately released on bail from a prison in Maharashtra due to his deteriorating health condition. “The health of poet, litterateur and political rights activist P Varavara Rao, incarcerated for nearly two years in the Bhima Koregaon conspiracy case, has significantly been deteriorating since he had a fall on May 28 in the Taloja jail,” the statement said. They quoted his family as saying that he is hallucinating, unable to walk and even brush his teeth.
The latest is the arrest of Dr Hany Babu an Associate Professor at the Department of English in the University of Delhi on 28 July 2020. The National Investigation Agency (NIA) arrested Dr. Hany Babu, in connection with the Elgar Parishad-Bhima Koregaon Case. On 24 July, Prof. Babu (54) was summoned to the NIA office in Mumbai as a witness where he was subsequently arrested after five days of questioning. He had requested to provide testimony via Video Conferencing considering the travel risk related to COVID-19, but his request was denied. As the questioning started, Prof. Babu was forced to provide false testimony against other activists and to accept allegations of being a functionary of the Maoists. Even under immense pressure, Prof. Babu, a conscientious teacher and activist, refused to concur with these lies. Because he stood for truth, Prof. Babu was arrested after five days of harassment in the name of interrogation.
The arrest of Prof. Babu is the continuation of an almost year-long harassment which began with a raid of his house on 10 September 2019. The Pune Police, who claimed the raid was in connection with the Bhima-Koregaon case, confiscated his laptop and mobile phones as well as barred him from using his social media handles. Prof. Babu has clearly stated that he has no connection in any way whatsoever with the incidents at Bhima-Koregaon. The Bhima-Koregaon case is related to the eruption of violence at the annual celebratory event of Dalits on 1 January 2018. Although violence at the event was triggered by the interference of Hindu right-wing groups, the incident was used as a pretext to arrest Dalit scholars and other activists.
Prof. Babu is the twelfth person to be arrested in relation to the case. As anti-caste scholars and activists, we understand that the framing of Prof. Hany Babu, a tireless anti-caste intellectual and activist, is an attempt to penalise Dalitbahujans for raising their voice against casteist practices. It is a tragic irony that the Indian Government is using a celebratory event of Dalits to frame anti-caste scholars and activists. Prof. Babu, who has consistently worked to ensure equal opportunity for Dalitbahujan students, views social justice as one of the main aims of scholarship. He also raised his voice to defend the rights of Prof. Sai Baba, a Delhi University Professor with 90% physical disability who was arrested on charges of having Maoist links in 2014. Prof. Babu’s commitment to social justice is penalised by his arrest. This is the latest example of the current Indian Government’s attempt to annihilate dissent and freedom of life for its vocal public.
On 31 July, the British newspaper ‘The Guardian’ had a telling article on the situation in India entitled, ‘India arrests dozens of journalists in clampdown on critics of Covid-19 response’ .The incisive report says, “ facing a continuing upward trajectory in Covid-19 cases, the Indian government is clamping down on media coverage critical of its handling of the pandemic. More than 50 Indian journalists have been arrested or had police complaints registered against them, or been physically assaulted. The majority of those facing action are independent journalists working in rural India , home to more than 60% of the 1.35 billion population. “The indirect message is that we cannot show the government in poor light. It does not matter if we have to turn a blind eye to issues we witness,” said Om Sharma, a journalist with a Hindi daily in Himachal Pradesh, a mountain state in north India. Police had charged him over a Facebook live report that showed stranded workers in need of food during the lockdown.”
This is just the tip of the iceberg! For almost a year now, since 5 August 2020, and with the abrogation of Articles 370 and 35A, the people of Kashmir have been imprisoned. Well known Supreme Court lawyer Prashant Bhushan tweets about the way the Chief Justice of India is publicly portraying himself – and he is hauled up. Those who take a stand are charged with sedition and under the UAPA- the list is endless.
Justice Deepak Gupta is unequivocal when he states, “ the right to dissent includes the right to criticise. We all must be open to criticism. The judiciary is not above criticism. If judges of the superior courts were to take note of all the contemptuous communications received by them, there would be no work other than the contempt proceedings. In fact, I welcome criticism of the judiciary because only if there is criticism, will there be improvement. Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by us need to be corrected. Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed ‘anti-national’. In case we attempt to stifle criticism of the institutions whether it be the legislature, the executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy and this the founding fathers never expected this country to be. To question, to challenge, to verify, and to ask for accountability from the government is the right of every citizen under the Constitution. These rights should never be taken away otherwise we will become an unquestioning moribund society, which will not be able to develop any further”.
“ Voice of dissent in democracy cannot be shut down!”
*( Fr Cedric Prakash SJ is a human rights and peace activist/writer. Contact: email@example.com)(Published on 03rd August 2020, Volume XXXII, Issue 32)