In the interests of public order

Systemic flaws enable political parties to selectively enforce fundamental rights to further their own interests

There has been much furore about the home ministry’s recent decision to arrest Jawaharlal Nehru University (JNU) students on the ground of sedition for allegedly chanting “anti-national” slogans. Though the move is not without supporters, many have criticized the arrest on grounds such as the fact that there is no law criminalizing anti-national activities, that the controversial offence of sedition has been misapplied or that it amounts to a blatant attack on free speech by the current government.

While these are all certainly valid arguments, they fail to address the larger pattern that is at the heart of the issue—a pattern that is not peculiar to one political party. After all, sedition isn’t the only law restricting the freedom of speech and the case of Aseem Trivedi has shown that the misapplication of sedition is not limited to the current dispensation.

Systemic flaws exist in Indian polity that enable political parties to selectively enforce fundamental rights to further their own interests when in power. The Constitution permits “reasonable restrictions” on these rights—and we are now at an unfortunate stage where the restrictions are being prioritized over their corresponding rights. B.R. Ambedkar was aware of such a possibility when he said that a good constitution could be undermined in the hands of bad people, and that it was possible to pervert the Constitution without amending it but by administrating it in a way that is inconsistent with its spirit. It is time the Indian state, whether it be via the judiciary, elected government or otherwise, re-examined its relationship with fundamental rights and their restrictions by asking: Why do we restrict our fundamental freedoms in the first place?

Article 19 of the Constitution is one of the most important fundamental rights as it is the one that grants basic freedoms such as the rights to free speech, to assemble peaceably and to work. However, the Constitution lists various reasons for Parliament to create “reasonable restrictions” for each of these different rights.

The reasons for restricting the right to free speech were significantly expanded by the 1st amendment to include restrictions “in the interests of” issues like the security of the state and public order. In 1962, the Supreme Court held that in the interests of public order, speech or behaviour could constitutionally be declared seditious if violence or a call to violence was involved (Kedar Nath Singh v. State of Bihar).

However, this position has rarely been followed by governments eager to silence dissenting or critical voices. While such charges of sedition do not hold up to scrutiny by courts, the arduous process of fighting legal battles in India is in itself a form of punishment. Not everyone possesses the bare modicum of legal knowledge, time or resources required to challenge these charges through multiple levels of courts. Furthermore, “public order” is not just used to punish dissenting opinions but prevent them. Governments have prevented assemblies or screening of films on the grounds that the content is objectionable to a community and will lead to a law and order problem. Such decisions have worryingly become the norm despite the fact that the Supreme Court has stated that such a response “would tantamount to negation of the rule of law and a surrender to blackmail and intimidation” and that it is “the duty of the State to protect the freedom of expression since it is a liberty guaranteed to handle the hostile audience problem” (S. Rangarajan v. P. Jagjivan Ram).

However, public order and the other reasonable restrictions have now become ends in and of themselves. Home minister Rajnath Singh promised the strongest possible action against anti-India slogans, which he qualified as trying to raise questions on the country’s unity and integrity. “Sovereignty and integrity of India” is one of the reasonable restrictions listed in the Constitution. But prioritizing restrictions over rights flies in the face of the very purpose of statehood. The reason that people willingly become part of a state is because its structure prevents a life of chaos and anarchy where survival is the primary concern. Granting the state a monopoly of violence enables it to secure law and order in a society so that citizens can pursue their goals and ambitions without fear. Ideas like the “security of the state”, “sovereignty and integrity of India” and “public order” are permissible restrictions not because they are worthy goals but because they are necessary ingredients in granting this sense of security to citizens.

It is also for this sense of security that fundamental rights exist in the first place. They are intended to secure a democratic and republic society where people can pursue their lives without fearing undue reprisal from the state or their fellow citizens. They are, among other things, intended to prevent arbitrariness and the overreach of government power by securing the rule of law. They are rarely absolute but generally are restricted only where their free exercise undermines other people’s rights or this sense of security. Reasonable restrictions were written into the Constitution only to avoid leaving the limits of fundamental rights to the sole discretion of judges.

Reasonable restrictions were thus intended to set clear parameters with which to limit fundamental rights so that people could exercise them harmoniously. However, reasonable restrictions have ended up providing the state a ready-made excuse to avoid building the capacity to enforce fundamental rights. In the name of public order, the police are more likely to refuse permission for events than provide increased security.

When the state dodges its duty to enforce fundamental rights, noxious elements of society take advantage by browbeating people who don’t follow the line they set. The ostensible objection that the Akhil Bharatiya Vidyarthi Parishad (ABVP) had against the rally on 9 February was that they “feared” it might “disrupt” peace on campus—that is, it threatens “public order”.