The proceedings within the Supreme Court docket of India involving the social media posts of Ali Khan Mahmudabad, a professor at Ashoka College in Haryana, have raised some necessary questions. On Fb, Mahmudabad had praised the conduct of the Indian Armed Forces in the course of the current navy confrontation with Pakistan, whereas additionally noting the futility of battle and its human value. He had gone on to watch that the Military’s determination to entrance Colonel Sofiya Qureshi in its public briefings was an necessary image of Indian pluralism, however that with out accompanying substantive motion to handle violence towards Muslims risked being decreased to optics. Following this, FIRs had been filed towards Mahmudabad, he was taken into police custody for just a few days, after which, despatched to jail. His laptop computer was confiscated (and continues to be so on the time of writing). He approached the Supreme Court docket, asking for his launch and for a suspension of the proceedings towards him.
Earlier than the Supreme Court docket, the oral arguments targeted on the character and the content material of Mahmudabad’s expression. His counsel insisted that the Fb put up was an easy occasion of patriotism, in that it superior unstinting help for the nation and the armed forces, even because it gently famous a attainable hole between the beliefs India aspired to, and elements of latest Indian actuality. The Court docket, nonetheless, appeared to not be satisfied. It recommended that Mahmudabad could have been partaking in “canine whistling,” together with his phrases carrying a double that means, and that it was pointless for him to write down such posts at a time like this.
Though the judges ended the listening to by granting Mahmudabad interim bail, it set harsh situations: The Court docket gagged him from commenting on the India-Pakistan battle and ordered him to give up his passport. These instructions, naturally, have far-reaching results on Mahmudabad’s rights to free expression and freedom of motion. Nonetheless, this didn’t appear to weigh too closely with the Court docket, which questioned why rights had been “distributed” all these years with out accompanying “duties”. Moreover, the Court docket constituted a three-member police Particular Investigation Group (SIT), which might look at Mahmudabad’s posts to glean their “double that means,” if any.
As this columnist has beforehand famous, whereas commenting on the proceedings involving Ranveer Allahbadia, judicially imposed gag orders are past the competence of the Supreme Court docket. Subsequently, as an alternative of critiquing such orders for his or her substance, it is very important level out that the judiciary doesn’t have the facility to gag or silence somebody; it’s only empowered to find out whether or not the federal government’s determination to take action is constitutional or unconstitutional. Right here once more, we see a judicially imposed gag order that’s not backed up by authorized reasoning. As a substitute of indicating what, in Mahmudabad’s put up, doubtlessly breached the legislation, the Court docket left this subject to be addressed subsequently by the SIT — however within the meantime, gagged Mahmudabad in any case.
The structure of the SIT, nonetheless, raises one other query in regards to the substance of Mahmudabad’s speech. This query is whether or not the Structure requires us solely to talk patriotically, and that due to this fact, can “unpatriotic” speech entice felony authorized penalties corresponding to jail time. The Structure doesn’t, nonetheless, do any such factor. The grounds for limiting speech and expression are rigorously set out below Article 19(2) of the Structure, and none of them compel patriotism, or stipulate that solely patriotic speech is worthy of being protected by the Structure.
There are good causes for this. A phrase corresponding to “patriotism” is inherently malleable and topic to many interpretations. Way back to 18th century English polymath Samuel Johnson noting that “patriotism is the final refuge of the scoundrel”, folks have tried to separate the “actual” patriots from those that are utilizing patriotism as an unprincipled defend. Such an try is at all times fraught with difficulties, and dangers sanctioning the abuse of energy.
However moreover, like love, “patriotism” just isn’t one thing that may be compelled or compelled. And identical to love, compelled patriotism is a contradiction in phrases; patriotism loses its that means except it’s freely willed. Each nation-State could have people who find themselves both alienated from it or those that query the very concept of nation-States (it’s price remembering that the nation-State just isn’t a transhistorical idea and isn’t greater than 500 years outdated).
The Structure consciously chooses to not criminalise ideas, feelings, emotions, and speech, whether or not patriotic or unpatriotic — except they quantity to incitement to violence or public dysfunction. And this needn’t be so: in 1933, with the shadow of World Battle II looming, and after a fiery debate, the Oxford Union handed a movement titled “this Home will by no means battle for its King and nation”. Winston Churchill chafed and seethed in Parliament, however correctly, that was all he did. He didn’t try and criminalise Oxford’s college students and additional alienate them from their nation, and the Oxford Union movement made no distinction to Britain getting into — and finally successful — World Battle II.
The purpose, due to this fact, is that the Structure prohibits us from utilizing our proper to free speech to incite violence or dysfunction, but it surely doesn’t compel us to talk solely patriotically. The framers of our Structure had been sensible sufficient to grasp that issues of deep disagreement and debate can’t be criminalised out of existence. Thus, at the same time as we affirm Mahmudabad’s patriotism, we should add that his freedom ought to not be dependent upon a discovering that he wrote a patriotic put up, however slightly, that he legitimately exercised his proper to freedom of expression below the Structure.
One would hope that when the SIT — and finally the Court docket —considers this case additional, this elementary precept will probably be recognised and reiterated.
Gautam Bhatia, a Delhi-based advocate, is the creator of Offend, Shock or Disturb: Free Speech Underneath the Indian Structure. The views expressed are private
