By Justice Kamaljit Singh Garewal
Our very own Marie Antoinettes seem to be telling farmers they can’t have gur, but promise chocolates, and ask them to accept the farm laws. On the other hand, a child screaming for chocolate is given gur, his mother says he should eat something Indian and not foreign. The farmers are practical people, they know when they are being led up the garden path. The child does not understand the distinction. His screams become louder. In childish anger, he says he hates his mother, he shall burn the house down unless he is given chocolate. Or take the example of a college student who organises a strike against the canteen for not serving noodles. The principal objects because India is at war with that country. And in the face of the farmers’ agitation, they are asking for gur-shakkar, but the government says they can have chocolate ice-cream.
The supporters of farmers are asserting the agricultural rights of states in legislative matters and calling for repeal of farm laws as Parliament lacks competence. There are other issues as well. The centre sees this as promoting self-determination. Would any sane person think that lovers of chocolate or noodles are guilty of sedition or the supporters of the farmers’ agitation are secessionists? It seems our police doesn’t possess that rare commodity called common sense. They slap Section 124A IPC on chocolate lovers. This crime was introduced in 1871 in the aftermath of the events of 1857, and later brushed up in 1898 in the form we have today.
A democratically elected government should normally be pleased when it faces dissent because dissent tells the government what is going wrong with its administration and how to rectify the wrongs for the betterment of the people. But dissent is being handled in an imperial way by the police. They still call up Winston Churchill for advice, and take all dissent as disaffection (disloyalty or enmity) towards the government. Benjamin Disraeli had guided the Empire to its most glorious heights in the second half of the 19th century, and crushed the spirit of India. During the height of the colonial era, the present criminal laws came to be framed by Thomas Macaulay. These laws still govern us well into the 21st century.
The defenders of accused persons look up the Constitution to prepare their defence and find bold statements of constitutional values of justice, liberty, equality and fraternity. This gives them hope to scuttle their prosecution for sedition. This imperial offence has no place in republican India. But there are surprises. The victor in the battle between Macaulay and BR Ambedkar is a foregone conclusion the former shall win hands down.
In contemporary India, law enforcers have to sometimes take different calls in matters involving even pornography, and blasphemy. But the approach is not much different. Does a nude painting of a sensuous, curvaceous woman depicting a Hindu goddess have anything at all in common with a pamphlet posted on Facebook calling the people of Kashmir to launch an armed assault on Jammu or a movie by a self-proclaimed saint prancing around like a rock star? They are all works of art, free expression of imagination or thought on paper or cyberspace or film, no matter how obscene, vulgar, dangerous, distasteful or irreligious they may be. But they could well border on pornography, sedition or blasphemy, respectively, depending upon who the viewer is. And may even be prosecutable criminal libels.
An illiterate, rustic villager may not appreciate the artistic value of the work in the same way as a person with university education. Here again it depends upon the type of education the viewer has received. In our country well-read persons with a strong liberal arts foundation, capable of forming a reasonable opinion on the worth of a work of art or piece of literature are a small minority. Who is to decide whether people should see the nude or read the pamphlet or laugh at the saint?
Politicians will think politically, and why should they not? They have an election coming up. They must consider the impact of art on their constituency and can’t be seen losing an election for the sake of artistic or literary expression. Government officials go to the other extreme. They just block the material from public viewing. So no one can really see it and form an opinion about its worth. This is the totalitarian way. TV anchors help raise the noise level, but not the debate level. So a lot of inane discussion takes place on TV without anyone having even seen the work. They discuss freedom of expression with gusto but cannot explain to the viewers what they find objectionable in the work. What is it that makes it pornographic, seditious or blasphemous?
We in the 21st century have been supposedly enlightened with modern education. Or are we still in the dark ages emerging from “pathshalas” and “madrasas”? What is pornographic depends upon each one’s mental and cultural make-up, but why do we overlook Kamasutra and Khajuraho, components of our heritage which we are all so proud of? And why should it be seditious if a group of people assert the right to self-determination? It is a free world where you may shout from the rooftop that the State is discriminating against you and you want a separate country. Nations don’t break up so easily because self-determination is very difficult to achieve. Call to arms, if raised, is answered with a call to arms by the State.
Someone must decide on the suitability of the work of art for public viewing after balancing the private right of freedom of artistic expression and public morals, national security or religious freedom. A provision does exist which gives a remedy to the aggrieved artist, author or movie-maker to approach the High Court. A Bench of judges would then see the offending work and decide whether it should be forfeited and withdrawn from public domain or not. Why do we permit these sensitive issues to be thrashed out in the streets or on TV channels or in the dark corridors of the Secretariat, where decisions are taken without anyone seeing the work or hearing the painter, author or movie-maker?
After Macaulay had done with destroying our education system, he encouraged us to learn English. What little was taught, turned us into petty clerks. The English-speaking world possessed great literature, poetry, music and drama. We didn’t adopt the entire sweep of English traditions and value system but learnt many things from colonial administrators some of whom were also great scholars who conducted research, and wrote authoritative works on many subjects.
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It was a good thing that we remained rooted to our soil and used liberal English education to win freedom. Though we became hybrid Anglo-Indians in the process and remain so till this day. People who got left behind without proper education, the tribals, the Dalits, the poor of our villages and small towns are bound to dissent. This has created a conundrum. The law enforcer, the police inspector, the judge have to administer laws written by Englishmen, in the English language, on people who are not familiar with Shakespeare or Wordsworth or liberalism or freedom of thought. They are not even familiar with their own Rabindranath Tagore or Premchand or Ghalib or Faiz. The few liberal minded who understand and appreciate art, literature and philosophy raise their voices but no one listens.
The abominable crime of “sedition” continues, without anyone understanding that it is completely at cross-purposes with our constitutional values. We aspire to become a world power, but our timidity in the face of dissent is truly astounding. Ours is a strange land of conflicting ideas and thought. Chaotic, confused and confounding.
—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York