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Right to Dissent- Repercussion with free speech

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Founder Director Lokbandhu Rajnarayan Law College Varanasi 221302 web: Since 2004

All self denial is good for soul. In Vedic era spirit of debate flourished. Those highly regarded in society were used to face question to prove their knowledge and intelligence in front of public or assembly. Once Gargi debated with Yagnavalkya who authored first Upanishad. Certainly, Gargi was not labeled as a traitor even though she questioned existence of all. Rishi Charvaka and Ajivika school went on to question the concept of Karma. Rishi Charvaka rejected the theory of karma, religious rites and reincarnation. He propounded the motto khao, piyo aur mauj karo, kal kisne dekha hai.

Gandhi held dissent, as a virtue, to be disaffected towards the government. One should be free to express himself to the fullest disaffection so long as it does not contemplate, promote, invoke or incite the violence! Dissent can be made violently or non violently. Gandhi chose the later one! But the burning question is, does the right to free speech allow the assault on sovereignty of the country? Because, when dissent become a violent means, can only be known when it begins to take human life and harm public property. And it happens sooner or later. Somewhere or other dissent has to be streamlined if we have to save democracy. Or in no time we can become the latent example of a failed democracy.

The legitimacy of dissent needs to be differentiated from malicious and malignant form of dissent. Because if not done so, it may be used by usurpers and malignant power to overthrow law and government. If dissent is borne with the objective to usurp and overthrow, it grows into disruptive force and it can cross the line and fall into realm of treason. The denial of  government authority and actively working against it may lead to sedition. We have many theories pertaining free speech. If we consider moralistic theory we can see this theory does not provide individual a lot of freedom. The liberal theory of free speech may be considered as tolerant and permissive considering individuals as more tolerant and competent to decide for themselves.

If we talk about jurisprudential aspect of free speech, we will find that every individual is equivalent and every individual’s ability to communicate and express oneself should be equal. It may allow the promotion of good policies and respect their right to speak freely. The right to freedom conferred on individual is restricted by Art 19 (2) in interest of public order. Many advocate about free speech and expression but there has to be some line of control beyond which free speech should not travel. Any freedom without restriction will lead to state of laisez faire. In recent times we have witnessed that in name of free speech and expression we are set loose to criticize anyone and anything no matter we know fact or not. The media, cinema go on to publicize what they want against government, against religion against humanity and many more. The tolerance is checked on standard of their height of freedom of speech.

The transgression is unjustified and unlawful be it in any form. None has the right to transgress into the realm of security and reputation of state or individual. This transgression will certainly invoke violence. The law of sedition says action or speech which imminently invokes violence will come under the ambit of section 124A. Now the big question arises, does the law has control on morality and ethics. Can morality be also codified and, if so, what will left with human conscience to do? Dissent, a priori is a healthy position that holds power of any kind in check and at times leads to great and long lasting positive changes in the lives of nations and their citizens. Dissent and its proponents walk a fairly broad path in democracy that can and at times does become a very narrow and slippery path that leads to disruptive and destructive results with incredibly negative results and unintended consequences and can lead to malignant and stealthy agenda of control over the future of the nation and its citizens.

It becomes incumbent on Government and authorities to quickly recognize legitimate dissent and differentiate it from a malicious and malignant form of dissent that has long reaching agenda that would lead to a significant undermining of government and the constitutional framework of citizens’ rights and social stability. Dissent often cross to become a treason. Even the mighty states perish primarily by deteorating political and judicial process and the two primary points of attack on democracy are the election process and the judicial system, particularly at the apex court or equivalent level since that is the organ of government that protects the constitution and citizen rights of the democracy. At the heart of treacherous activity it is important, almost urgent to identify the individuals and the organizations and institutions that are involved and collaborating in the attack against democracy.

Rajnarayan vs Indira Nehru Gandhi case, 1975, is the leading example of Gandhian virtue of dissent. Rajnarayan exposed Indira Gandhi malpractices adopted in the general election. This is the only form of peaceful dissent which brought the positivity of the democratic principles of the constitution- right to dissent. It changed the phase and face of Indian politics. In Kedarnath Singh vs St of Bihar 1962, the  Supreme Court constitutionalised the scope of sedition and limited the law to action or speech which clearly and imminently provokes violence. In Balwant Singh Case, 1995, the SC ruled that mere sloganing Khalistan Jindabad which did not evoke a public response cannot be called sedition. Considering myself as a law literate I cannot put a blame on judiciary but can say that court of law is supreme but certainly not infallible.

Instances have been there when single bench decision were turned down by larger bench. Sedition is big word, and to prove it is rather bigger and mightier task but we cannot pollute the essence of our constitution in name of free speech. Law changes with society so does the societal norms changes with advent of new laws. People demand freedom of speech as an attachment of freedom of thought and expression which they seldom use. Everyone is entitled to give their opinion but not without adhering to facts. If they have right to dissent or right to offend then  co- existence of jural corelative of right, that is duty not to offend, cannot be denied.

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Founder Director Lokbandhu Rajnarayan Law College Varanasi 221302 web: Since 2004
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