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Cultural Nationalism Is Disturbing, Says Justice AP Shah

The article is an excerpt from the MN Roy Memorial Lecture delivered by former Chief Justice of the Delhi High Court, Justice AP Shah. Titled “Free Speech, Nationalism and Sedition”, the speech was made on April 19 at New Delhi’s Constitution Club.

Justice Shah began by pointing out that in any society, at any given point of time, there will always be people holding divergent views. Such views are integral and inevitable in a healthy, functioning democracy. However, he added, our institutions of learning are under attack today, and there is a concerted attempt to destroy any independent thought.

Justice AP Shah, Former Chief Justice, Delhi High Court Today, sadly, in this country I love, if anyone holds a view that is different from the government’s “acceptable” view, they are immediately dubbed as “anti-national” or “desh-drohi”. This marker of “anti-national” is used to intimidate and browbeat voices of dissent and criticism, and more worryingly, can be used to slap criminal charges of sedition against them. 

Nationalism: Dangers Of A Single Story

Justice Shah cautioned against what the celebrated Nigerian author Chimamanda Adichie termed as the “danger of a single story” – the danger of understanding an idea only from a single perspective and ignoring the diversity of views present.

“India is a diverse country, and people hold different views about nationalism, the idea of India, and our place in the world. We must respect these differences, not silence those who hold a different view on nationalism and patriotism for the country. Elevating only a single view – one that idolises the nation and staunchly rejects any internal or external criticism – will only polarize citizens against each other.”

Justice Shah pointed to the Constitution that starts with a solemn declaration of “We, the people of India...” In this context, he questioned, is being anti-national equivalent to being anti-government or is the hallmark of an anti-national that they are against the interest of the people, especially the minorities and the depressed classes? Can an entire University and its student body be branded “anti-national”?

Justice AP Shah, Former Chief Justice, Delhi High Court  Our current state of affairs is especially sad when we consider that the freedom struggle gave us a country and a Constitution that was committed to the ideals of democracy, free speech, civil liberties, and secularism. Unlike Pakistan, religion is not the founding basis of our nation. Our right to free speech and expression is not a gift or a privilege that the Government bestows on us; it is our right, guaranteed by the Constitution of India, and won after decades of struggle and sacrifice by the people of India.  

Assault On Free Speech

Justice Shah said that the Indian Constitution is drafted as a positive, forward-looking, inclusive document that binds the aspirations of all Indians. The Preamble expresses the resolve of the people to constitute India into a sovereign, socialist, secular, democratic republic securing justice, liberty, equality, and fraternity of its citizens.

“This achievement is all the more noteworthy if we consider, as Fali Nariman recently pointed out, that in a Constituent Assembly of 299, 255 members (85 percent) were Hindus. Despite being in a massive majority, the Constitution drafters took pains to protect the interests of the minority, the oppressed, and the dissenters.”

Justice Shah pointed out that today free speech is under attack. He said that the joy over the striking down of Section 66A of the IT Act in the Shreya Singhal case was soon replaced by despair over the Supreme Court’s decision to uphold the constitutionality of criminal defamation in Subramaniam Swamy versus Union of India and its “order” directing all cinema halls across India to play the national anthem before the start of a film, and requiring the audience to stand up as a “show of respect”.

He pointed to the comments made by the Uttar Pradesh politician Azam Khan regarding the Bulandsher gang rape, on which the Supreme Court raised the question of whether the right to free speech under Article 19(1)(a) is to be controlled singularly by the language under Article 19(2), or is it also impacted by the expansive right to life and personal liberty under Article 21 of the Constitution. The answer to this question, he said, will have a profound impact in restricting the scope of Article 19(1)(a) and undermine our Constitutionally guaranteed right.

Justice Shash recounted few recent incidents which he thinks are an assault on the freedom of speech and expression.

Justice AP Shah, Former Chief Justice, Delhi High Court Unfortunately, we read about reports where the CBFC, our “censor board” has refused to certify a movie such as Lipstick under my Burkha, because it was “lady oriented”, contained “sexual scenes, abusive words, audio pornography”; deleted the line “mann ki baat” from the upcoming movie Sameer because that is the name of the Prime Minister’s radio show; and demanded that the Hanuman Chalisa be muted from a scene in Phillauri, because it failed to ward off the ghost. How can you forget that in Udta Punjab, a Adult-only certified movie, the Censor Board demanded 94 cuts (based on 13 suggestions), including deleting the name “Punjab”, deleting certain abuses and deleting the words “Election”, “MP”, and party worker.

Free speech has to be protected institutionally – not only by the courts, but also by statutory institutions and the media, he added.

Cultural Nationalism Is Disturbing

Justice Shah said sedition is a word that almost everyone in India has heard of today owing to the events at the Jawaharlal Nehru University (JNU) last year. He explained that the law on sedition is quite clear on the distinction between strong criticism of the government and the incitement of violence, with only the latter being related to sedition. Thus, regardless of whether the JNU students’ slogans were anti-national, hateful, or an expression of contempt and disdain against the government – as long as they did not incite violence – it does not get covered under sedition.

The enforcement or the threat of invocation of sedition constitutes an insidious form of unauthorised self-censorship by producing a chilling effect on the exercise of one’s fundamental right to free speech and expression. That is why the law needs to be repealed.  

However, he added, it is unlikely that any government will give up this power, and it is therefore left to the courts to re-examine the constitutionality of sedition. It is not enough to expect an acquittal by the courts after 4-5 years; we need to stop the misuse of the law to silence dissent by removing the source of the power itself, Justice Shah added.

He expressed concern over the recent events that have sought to undermine academic institutions and academic freedoms:

  • The backlash against the mother of University of Hyderabad PhD student Rohit Vemula, declaring that she was not a “dalit”;
  • The charges of sedition levelled against JNU students; to protests at Ramjas College and Delhi University about the organisation of a seminar; and
  • The outcry against an undergraduate student’s tweet.

Justice AP Shah, Former Chief Justice, Delhi High Court The inaction of State institutions like the police in light of the violence and bullying by certain groups leads to a fear psychosis amongst students. Unless some remedial action is taken, we will produce an entire generation of students who will never have been encouraged to question the dominant ideas and encouraged to think differently  

Justice Shah said that the Supreme Court’s national anthem order seems contrary to the spirit of the Constitution and past precedent in the Bijoe Emanuel versus State of Kerala case, which made it clear that we cannot be forced to sing the anthem.

Justice AP Shah, Former Chief Justice, Delhi High Court It is important to remember that the right to free speech and expression also includes the right not to speak or express ourselves. However, under the guise of “law”, the Court has now stepped in and restricted our fundamental rights  

Finally, Justice Shah also said that preventing people from eating the food they want and effectively forcing a life choice on them undermines any feelings of nationalism and unity, and is another insidious form of cultural nationalism.

Justice AP Shah, Former Chief Justice, Delhi High Court Recently, Mohan Bhagwat called for a national law against cow slaughter. But we must be wary of forcing a single ideology or way of living on the entire country...One reads multiple reports about slaughterhouse crackdowns in UP, crackdowns that are primarily targeted at Muslim butchers, leaving lakhs of people with fear, but without stable employment. We also recently had the horrific incident in Una where seven Dalits were beaten by cow-vigilantes for alleged cow slaughter. And how can we forget the lynching of Akhlaq, who was suspected for allegedly storing and consuming beef, but where the first thing that was sent for forensic examination was not his body, but the food that is in the fridge. Is this what the value of human life comes to?