Article 19 (1) grants freedom of speech and expression. This right must be defended even if the majority does not like it.
~By Justice Narendra Chapalgaonkar
Recently, there has been an unusual spurt in debate on constitutional values and patriotism in the premises of various universities. Debate on academic topics in universities is always welcome; but the only difficulty in these cases is that the debate was not taking place in classrooms or lecture halls. There is no participation by the teaching community. It is carried out in the form of slogans and violence and all the participants are not necessarily students of that institution. Some of them come from outside. These developments naturally worry all those who care for liberal and constitutional democracy and for academic freedom. A section of these young agitators fight for freedom and azadi; another section advocates patriotism and nationalism. Some claim that they have come there to prevent anti-national activities. They assume the role of an academic police.
The controversy centers around the scope of freedom of expression. It is alleged that it is being misused. Who can prevent the misuse of freedom of expression? Are there no safeguards against such misuse?
Article 19 (1) of the constitution granting freedom of speech and expression to all citizens of India does not define freedom. Rightly so, since every definition limits the scope of the concept defined. Freedom, broadly speaking, includes everything not expressly prohibited by law. Sub art. 2 of art. 19 lists the reasons whereby the state can impose restrictions by law. Such law can be either a principal legislation or a subordinate in the form of rules made thereunder. These restrictions will have to be reasonable. Reasonableness of any such restriction can always be looked into by our constitutional courts. The restrictions on freedoms can never be imposed by an executive order.
Therefore, if a state imposes curbs on freedoms by an invalid law or merely by an executive order, citizens can move the courts. If restrictions are sought to be imposed by non-government private political bodies, what is the remedy? These bodies, affiliated to some political party or ideology, right and left, assume the role of defenders of the constitution. This would only worsen the political chaos.
Whenever facts are disputed, truth will have to be found by a proper agency. If something is alleged to have happened in the university campus, the vice-chancellor could have appointed a fact-finding committee. If the police had taken up the matter, it must file a report in the court and take further action. If some spoken or written words are objected on the ground that they are anti-national or seditious, it is for the courts to decide in the light of the relevant statute.
The constitutionality of any statute, order or even government policy can be academically discussed in universities. But such a discussion should be in the proper form and in a dispassionate manner. The outcome of such academic deliberation may be helpful to the state and society. You can’t decide the meaning of constitutional concepts by morchas and violence. No political leader has a right to decide what is anti-national in the absence of reference to the statutory provision. They cannot function as a semi-judicial authority. This is contrary to the constitutional mechanism.
Freedom of expression does not mean freedom to utter only what pleases the political power. It includes even the expression of thoughts which the majority may not like; still that right will have to be defended. Nationalism may have different meanings in different ideologies and in different contexts. Politicians would like to interpret these concepts according to their own Bibles. But that would be a clear encroachment on the fundamental rights of the citizens.
Fundamental rights enshrined in the constitution were provided for prevention of their erosion by the state. Attacks on these rights by groups of unruly persons with political motives were not contemplated by the framers of the constitution. When action was taken against leaders like AK Gopalan or Ram Manohar Lohia by the state, reasonableness of such action was examined by courts.
What is happening today is not a state action. On the contrary, the state has a duty to allow citizens to express their opinions. It also relates to maintenance of law and order. What is happening in universities is not furthering the cause of the constitution or the nation. It is something like a political pollutant further deteriorating the universities.
—The writer is a former judge of the
Bombay High Court and an author