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DISSENT & DEMOCRACY- CRACKDOWN ON RIGHTS

Updated: Apr 7

RESEARCH PAPER


DISSENT & DEMOCRACY- CRACKDOWN ON RIGHTS

"In a democracy dissent is an act of faith. Like medicine, the test of its value is not in its taste, but in its effects." ~ J. William Fulbright

ABSTRACT

The author through this research paper is going to highlight the important role of dissents and the current status of freedom to dissent in society. The author has divided the topic into six chapters wherein initially tried to discuss the relevance of dissent along with freedom of speech and expression. The next chapter has discussed the comparative study of freedom of dissent with respect to other countries followed by the importance role of the judicial role that has played a vital role in the present as well as future. In the last chapter, I have discussed the consequences of having dissenting opinion judgment or legislation that is very unusual and unexpected.

But we must not forget the importance of dissent in society against any policy or legislation or even judicial dissent because nature expects with time creature and ideas should evolve and make required changes to the existing system. The author has finally reached the conclusion that dissent is integral for the functioning as well to balance the power in the democracy as it has been correctly pronounced by the judiciary “dissent is the safety valve of democracy. If not allowed, the safety valve will burst.[1]

KEYWORDS: Democracy, Dissent, Judiciary, Legislations, Reasonable restrictions.


INTRODUCTION

I believe everyone is aware of the first case related to violation of fundamental rights decided by the honorable supreme court of India in 1950. Yes, I am talking about A K Gopalan v. State of Madras[2]where the majority ruled in the favor of the state and I also believe at present majority of the population even judiciary is supporting dissenting opinion of this case by justice Fazl Ali, Saiyid where he dissented that in order to decide whether a particular action of the state violated fundamental right or not has to decide by harmoniously interpreting different articles simultaneously under part-III of the constitution and not in silos[3]. The entire country witnessed when the apex court embraced the dissenting view of the above casein RC Cooper & Ors v. UOI[4].

In general dissent can be understood as an opinion that is opposite to the majority opinion or idea or policy of the government or any other organization. In a diverse country like India where people of a different faith, different political party, and various other differences co-exist it is obvious that the dissenting view will arise against the policies or law or idea of government where majority opinion prevails and a majority decision gets implemented. So, when a minority population expresses dissenting views should not compare it at par with the definition of disloyalty toward the government or a nation[5].

Edward R. Murrowcommented"We must not confuse dissent with disloyalty.", therefore when a country claims it to be a democratic country then it has to allow freedom of dissent because it is next to impossible for citizens to know the pros and cons of legislation if they have not been given the freedom to give their opinions which is opposite to the majority opinion of people in power[6]. In fact, the basic character of liberty may include free from trade restriction and freedom to give a dissenting view which is opposite to the views supported by majority.

But the current trend indicates the unwelcoming of the dissenting opinion of minorities against any legislation or policy by the parliament. On many occasions it has been noted that they are criticized by the supporters of the government in fact they have been attacked for their contrary views or against government policy or legislation. In many countries like China where one-party system prevalent at present people in such country rarely have much freedom of speech and expression but even after that anyone dares to dissent on any government policy or any enactment they face harsher consequences that create fear in the public from dissenting.

But if we analyze the current situation throughout the countries then it feels like the freedom of dissent is shrinking. In many countries, the government with the help of legislative power deliberately trying to constrict the ambit of freedom to dissent.

In India recent years it is witnessed that the ambit of freedom to dissent has been further restricted both by the government as well as by the judiciary. Many incidents have just appeared where if anyone has tried or given their dissenting view on any matter related to the government then that particular individual or the organization has been muted from expressing themselves further on any government policy or legislation.

DISSENTING REQUISITE TO COMPLETE DEMOCRACY

AbhramLinconclearly mentioned the practical meaning of democracy that “Government is of the people, by the people and for the people” which in simple words means the opinion of every citizen matters. Citizens are not bound to only actively support or to take part in elections rather it is the duty of the citizen to give their dissenting view regarding any decision of the government if they feel a particular decision is against the will of the citizen because in democracy freedom of speech includes freedom to dissent[7].

Every country that follows the democratic forms of government whether it is the USA or India they have recognized the freedom of speech for every citizen to have different opinion and the same has been guaranteed by the constitution and the framers of the constitution have intentionally inserted freedom of speech and expression in part III of the constitution of India as our fundamental right[8]. In fact on various occasion the Supreme Court has also stressed the importance of freedom of speech and expression in a democratic form of government. And on the similar line justice Gupta pointed that “there can be no democracy without dissent”[9].

In fact Right to dissent has been guaranteed by the universal declaration of human rights under Article 7[10] which states that:

“Everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance.”

Therefore, right to dissent[11] is an integral part of freedom of speech and expression under Article 19 of the constitution of India. The dissenting opinion should not be taken as anti-government or disloyalty to the country rather it is considered as a side-effect of a medicine. There is a difference between ‘a country’ and in ‘a government’ where the country is a particular territory with a government and government is a body that runs the country so, we must not confuse dissent as against the nation rather dissent be accepted as a check on the functioning of government and their implementation of rules and decisions. And the same has been enforced by Supreme Court[12] on various occasion for instance in 1962 the court held that on the basis of ‘personal sensitiveness’ there can be the imposition of restriction on freedom of speech and expression. Again, in 2015 the Supreme Court[13] emphasized on freedom of speech and expression as “Protected and innocent speech” cannot be curtailed on vague grounds that it was “grossly offensive” or “causes annoyance or inconvenience”.

Later on the again Supreme Court[14] held that the voices of opposition cannot be muffled by oppressing those who take unpopular causes. Further in 2017 the apex court[15] held that “neither life nor liberty is rewards conferred by the State”.

RIGHT TO DISSENT WITH RESPECT TO USA, UK, AND CHINA

USA[16]

After the American revolutionary war, 1780 there was a huge debate on the adoption of the new constitution which resulted in the division between federalists, who favored the strong federal government, and non-federalists, who favored weak federal government. But finally during the adoption of the new constitution the non-federalist had a serious concern regarding the enormous power of the federal government which resulted in drafting and eventually adoption of the Bill of rights including the first amendment which restricted the power of the federal government[17].

The first amendment which provides for the freedom of speech and expression with includes:

· Not to speak (especially, the right not to salute to flag)[18]

· Students can wear black armband to protest against war[19] (“Students do not shed their constitutional rights at the schoolhouse gate.”).

· Use of certain political word or phrases to convey the political message[20].

· Contribution of money for political campaign[21].

· To advertise commercial products and professional services[22] (with some restrictions)[23].

· To engage in symbolic speech[24], (e.g., burning the flag in protest).

But the freedom guaranteed by the first amendment is not absolute rather it is subject to restrictions. The restriction can be imposed on grounds as incitement, false statement of facts, obscenity[25], fighting words, threatening POTUS[26], illegal use of drugs at school-sponsored administration[27], burning of the draft card as an anti-war protest[28].

UNITED KINGDOM

Common law[29] has never recognized the freedom of speech and expression unlike the right to property, reputation, etc. as law therefore English law has never noticed such freedom. And it is because of this reason UK has no equivalent law to the first amendment in The USA and not even France’s 1881 freedom of press statute.

But after the Human rights act of, 1998 the UK has radically changed with respect to freedom of speech and expression. The UK has incorporated Article 10[30] which guarantees the freedom of speech and expression has been protected by The United Kingdom but this right is just a qualified right that is subject to restriction by law.

PEOPLE REPUBLIC OF CHINA

The Citizen of china[31] have hardly any say in the decision or policy of Chinese government then dissent is very far reached for them and this is because of the fact that China has recognized the freedom of speech and expression only as a privilege and not as freedom or right.

In another word, there are very few elite classes to whom freedom for expression has been granted but even for them also it is not absolute. Few elite classes may include senior leaders, academicians, and journalists.

RIGHT TO DISSENT WITH RESPECT TO CONTEMPORARY INDIA

The preamble was originally introduced as an objective resolution before the constituent assembly by Pt. Jawaharlal Nehru on 13th December 1946[32]which is like the preface of a book that explains the content of the book similarly our preamble represents itself as a blueprint of the constitution. Earlier there was a doubt as to whether the preamble is an integral part of the constitution or not but this doubt was cleared by the Supreme Court that Preamble is part and parcel of the constitution and the same has been reiterated[33]in Union Government v. LIC of India[34].

it is clearly stated in Preamble that every citizen has LIBERTY of thought, expression, belief, faith, and worship; which means that there will no restriction on the individual and simultaneously it allows growing “individual personality[35]. Liberty mentioned in the preamble[36] is vital for the successful functioning of democracy but it must not be misunderstood as a license to do whatever one feels like to do rather the liberty has to be taken within certain limitations[37] which is enshrined under Article 19(1) of the constitution of India.

Article 19 clauses (a) to (c) provide us with three different instruments to express our dissenting views. Freedom to dissent or disagree is a subset of freedom to speech and expression because it is the debate, discussion, disagreement, and solution that finally lead to the conclusion of a particular problem. And it was because of freedom to dissent that allowed many people like Buddha, Jesus, Karl Marx, Mahavira, Martin Luther, Swami Vivekananda, and many more allowed them to question the well-established thought of our forefather that eventually led to the establishment of new thought and practices in society[38].

In a democratic country, the mandate of the ruler is decided by the votes and the one who secures the majority in the election forms the government and rules the entire country. In India, if in a Lok Sabha election one party or alliance secure 51% of the vote then, in that case, its government will rule the entire country and not just 51% of the population, and here freedom of dissent plays a very important role for the rest of 49% of the population.

IMPORTANCE OF DISSENT BY JUDGES

It is true that law needs to be simple and certain but in this fast-changing world, the law cannot remain stagnant rather the interpretation of the law should be dynamic, and therefore it is not necessary that everyone should agree with others. In fact, the dissenting view of the judge acts as a seed that grows in the future as a new thought. India has witnessed the relevance of dissenting views by judges and it has proved to be fruitful in contemporary society.

Justice Nariman view in the Shreya Singhal case[39].

“In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.”

Dissent by Justice Fazal Ali in A.K. Gopalan’s case[40]

Where he was of the view that procures must be fair and reasonable and stressed that the articles must be read together to protect the rights of the citizen and not to read articles in silos. The dissenting view was later accepted in R.C. Cooper’s case.

Kharak Singh vs. The State of U.P. and Ors.[41]

In this case, majority ruled that privacy is not a fundamental right but Subbarao, J was of the view that although the right to privacy is not enshrined in the constitution but the said right is essential to personal liberty and this the dissenting view was accepted by the constitutional bench in the Justice K.S. Puttaswamy vs. UOI[42] after 55 years.

Justice Indu Malhotra in the Sabarimala case[43] held Article 17[44]does not attract limited restriction of a particular age group of women in the temple.

RECENT TREND TO SUPPRESS THE DISSENT CULTURE

“Protest beyond the law is not a departure from democracy; it is absolutely essential to it” – Howard Zinn

A word has layers of meaning and it can be interpreted in different ways depending on the person, society, and the situation. Therefore, we must accept that right to dissent also includes the right to protest and the right to criticize but it must be constructive criticism rather than with a motive to tarnish someone’s reputation and it includes questioning or asking or challenging any government regarding their legislation or policy or decision but the recent incidents indicated a negative trend in society[45].

Farmers protest: In 2020 union government came up with new farms law which according to them will help and ease the doing of business rather it will widen the ambit of a market where farmers can directly indulge in business with MNCs. But according to farmers, this legislation will leave them at the mercy of big companies and started protesting the law to which they were labeled [46] as ‘Khalistani'[47]anti-national’[48].

ShaheenBagh protest: In 2019 union government came up with Citizenship Amendment Act and NRC which will provide citizenship to refugee coming from neighboring countries that are Hindu, Sikh, Jain, Parsis, or Christian. But again certain sections of society started protesting against the law were labeled [49] as anti-national[50], terrorist[51] etc.

In fact many incidents has been surfaced that police were ordered to suppress the peaceful protest and it has been noticed that police[52] used lethal force on the protesters to supress[53] their voice[54]protesting against discriminatory law in fact police[55] forcibly entered into the premises of the university which resulted in students death, arrested, and hurt. But later the police for their action were criticized[56] throughout the country, student[57] all over India protested against the police action on students.

CONCLUSION

The framer of the constitution has intentionally included the freedom of speech and expression as an integral part of fundamental rights with a motive to allow an individual to form and express their opinion keeping in mind the diverse nature of our country and the similar rights have been recognized by UDHR[58] under Article 19. But in the current scenario, the concern has been rising because many incidents have been reported where the government tried to suppress the voice of people indirectly by increasing tax on newspapers, use of censors, forcefully shutting down news channels or the government refusing to divulge information that affecting the life of people etc. on many occasion journalists either get threat or get detained or get murdered[59]. In India, during the recent event, when certain group dissented or protested against a particular law they were labeled as anti-national by the government or police used brutal power to suppress their voice. But these powers could not deter people from either raising their voice or dissenting view. On many occasion, people try to remind the importance of freedom of speech and expression through the world via different platform recently Justice D.Y. Chandrachud has mentioned[60]:

“The blanket labeling of dissent as anti-national or anti-democratic strikes at the heart of our commitment to protect constitutional values and the promotion of deliberative democracy”.

And to spread the awareness UN has decided the theme for the year as “Freedom of Information: the right to know[61]rather everyone should understand the importance of freedom of speech and expression because it is the discussion, opinion and suggestion help us to arrive at fruitful conclusion further, Dissent is vibrant to democracy[62].


[1]RomilaThapar and Ors.vs. Union of India (UOI) and Ors. MANU/SC/1098/2018

[2] 1950 AIR 27

[3] Ibid

[4] 1970 (1) SCC 248

[5] https://www.thehindu.com/opinion/lead/the-nature-of-dissent/article24857884.ece

[6](1990) 1 SCC J-7 Rule of Law and Democracy — Friends or Foes?

[7]https://theprint.in/judiciary/right-to-dissent-most-important-majoritarianism-is-antithesis-of-democracy-sc-judge-gupta/370054/

[8] Brent R. Cromley, The Right to Dissent in a Free Society, 32 Mont. L. Rev. (1971).

[9] https://thewire.in/law/right-to-dissent-constitution-justice-deepak-gupta

[10] Universal Declaration of Human Rights, 1948

[11]Supra note 1.

[12]Kharak Singh vs The State Of U. P. & Others 1963 AIR 1295.

[13]ShreyaSinghal vs. UOI AIR 2015 SC 1523.

[14]Supra note 1.

[15]K S Puttaswamy v. Union of India (2017) 10 SCC 1.

[16]https://www.whitehouse.gov/about-the-white-house/the constitution/#:~:text=The%20First%20Amendment%20provides%20that,the%20right%20to%20bear%20arms.

[17] Supra note 7.

[18]West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

[19] Tinker v. Des Moines, 393 U.S. 503 (1969).

[20]Cohen v. California, 403 U.S. 15 (1971).

[21]Buckley v. Valeo, 424 U.S. 1 (1976).

[22]Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

[23] Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976)

[24]United States v. Eichman, 496 U.S. 310 (1990).

[25]Roth v. United States, 354 U.S. 476 (1957).

[26]President of the United States of America.

[27]Morse v. Frederick, __ U.S. __ (2007).

[28]United States v. O’Brien, 391 U.S. 367 (1968).

[29]Eric Barendt, Freedom of Expression in the United Kingdom under the Human Rights Act 1998, 84 IND. L.J. 851 (2009).

[30] Human Rights Act 1998, c. 42, https://www.legislation.gov.uk/ukpga/1998/42, archived at https://perma.cc/ZKN8-XVNC.

[31] https://www.cecc.gov/freedom-of-expression-in-china-a-privilege-not-a-right

[32] M Lakshmi Kant (2013). Indian Polity (4thed.). McGraw Hill Education. P. 4.5. ISBN 978-1-25-906412-8

[33] (1983) 4 SCC 225

[34] (2003) 179 CTR Raj 432

[35] Supra note 9.

[36]Indian Young Lawyers Association and Ors.vs. The State of Kerala and Ors. MANU/SC/1094/2018

[37]Amish Devgan vs. Union of India (UOI) and Ors. MANU/SC/0921/2020

[38] Supra note 9.

[39] Supra note 13.

[40] Supra note 2.

[41] Supra note 12.

[42] Supra note 15.

[43] Supra note 36.

[44]The Constitution of India, 1950.

[45] https://www.jurist.org/commentary/2020/06/chhabaria-tripathi-safoora-zargar/

[46] "Khalistan, Pak slogans raised at farm protest: BJP gen secy". The Indian Express. 2020-11-30. Archived from the original on 2020-12-01. Retrieved 2020-12-03.

[47] "Khalistan sympathizers use farmers' protest to promote their separatist agenda". BW Business world.ANI. 2020-12-03. Archived from the original on 2020-12-07. Retrieved 2020-12-03.

[48]https://www.outlookindia.com/website/story/india-news-editors-guild-advises-against-label-protesting-farmers-khalistanis-anti-nationals-in-media-coverage/366259

[49]https://www.thehindu.com/news/national/other-states/bjp-talks-of-emergency-but-labels-protesters-anti-national-activist/article30463757.ece

[50]https://www.deccanherald.com/national/national-politics/amit-shah-dares-kejriwal-to-visit-shaheen-bagh-asserts-modi-govt-will-not-spare-anti-nationals-798830.html

[51]https://www.indiatvnews.com/elections/news-yogi-adityanath-shaheen-bagh-terrorists-kashmir-delhi-elections-585098

[52] Singh, Amrita. "Not just CAA, it's a struggle against authoritarianism: Academics unite against police brutality". The Caravan.Retrieved 27 December 2019.

[53]GuwahatiDecember 11, Hemanta Kumar Nath; December 11, 2019UPDATED; Ist, 2019 20:28. "1,000 detained as anti-Citizenship Amendment Bill protests intensify in Assam". India Today.Retrieved 27 February 2020.

[54] https://www.hrw.org/news/2019/12/23/india-deadly-force-used-against-protesters

[55]"Anti-CAA stir: Violent protests rock Jamia, AMU; Bengal boils, uneasy calm in Assam". The Economic Times. 15 December 2019. Retrieved 21 December 2019.

[56] Ellis-Petersen, Hannah (17 December 2019). "India protests: students condemn 'barbaric' police". The Guardian.ISSN 0261-3077.Retrieved 17 December 2019.

[57] Kumar Nath, Hemanta (13 December 2019). "2 minor boys killed in police firing during anti-CAB protests in Guwahati". India Today.Retrieved 16 December 2019.

[58] Universal declaration of Human rights, 1948

[59] https://www.un.org/en/chronicle/article/freedom-expression-fundamental-human-right

[60] https://thewire.in/rights/justice-chandrachud-dissent-anti-national-democracy-caa

[61]http://www.unesco.org/new/en/communication-and-information/freedom-of-expression/freedom-of-information/about/

[62] Supra note 5.


23/01/2021

UTKARSH,

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL



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