The Criticality of the Right to Dissent

Text of the annual Rajendra Mathur Memorial Lecture organised by the Editors Guild of India in Delhi on February 12, 2016
I begin on a self-indulgent note. “How is Amartya?” asked my uncle Shidhu (Jyotirmoy Sengupta) — cousin of my father — in a letter written from Burdwan Jail, on August 22 of 1934, before I was one. He complained about the name “Amartya”, given to me by Rabindranath Tagore, and argued that the great Tagore had “completely lost his mind in his old age” to choose such a “tooth-breaking name” for a tiny child. Jyotirmoy was in jail for his efforts to end the British Raj. He was moved from prison to prison — Dhaka Jail, Alipur Central Jail, Burdwan Jail, Midnapur Central Jail. There were other uncles and cousins of mine who were going through similar experiences in other British Indian prisons.
Jyotirmoy himself came to a sad end, dying of tuberculosis, related to undernourishment in the prisons. As a young boy I was lucky to have a few conversations with him, and felt very inspired by what he said and wrote. He was committed to help remove “the unfreedoms heaped on us by our rulers.”
How happy would Jyotirmoy have been to be in today’s India, with the Raj dead and gone, and with no unfreedoms imposed on us by the colonial masters? But — and here is the rub — have these unfreedoms really ended? The penal codes legislated by the imperial rulers still govern important parts of our life. Of these, Section 377 of the code, which criminalises gay sex, is perhaps the most talked about, but happily a Constitution bench of the Supreme Court is re-examining it.
It is, however, often overlooked that the putting on a pedestal of the sentiments of any religious group — often very loosely defined — is another remnant of British law, primarily Section 295(A) of the penal code introduced in 1927. A person can be threatened with jail sentence for hurting the religious sentiments of another, however personal — and however bizarrely delicate — that portrayed sentiment might be.
The Indian Constitution, despite claims to the contrary, does not have any such imposition. In a judgment on March 3, 2014, the Supreme Court in fact gave priority to the fundamental right of the people to express themselves, as enshrined in the Constitution. The Constitution’s insistence on “public order, decency or morality” is a far cry from what the organised political activists try to impose by hard-hitting kick-boxing, allegedly guided by delicate sentiments. The Constitution does not have anything against anyone eating beef, or storing it in a refrigerator, even if some cow-venerators are offended by other people’s food habits.
The realm of delicate sentiments seems to extend amazingly far. Murders have occurred on grounds of hurt sentiments from other people’s private eating. Children have been denied the nourishment of eggs in school meals in parts of India for the priority of vegetarian sentiments of powerful groups. And seriously researched works of leading international scholars have been forced to be pulped by scared publishers, threatened to be imprisoned for the offence of allegedly hurting religious sentiments.
Journalists often receive threats — or worse — for violating the imposed norms of vigilante groups. The Indian media has a good record of standing up against intimidation, but freedom of speech and reporting need more social support.
To see in all this the evidence of an “intolerant India” is just as serious a mistake as taking the harassment of people for particular social behaviour to be a constitutional mandate. Most Indians, including most people who are classified as Hindu (including this writer), have no difficulty in accepting variations in food habits among different groups (and even among Hindus). And they are ready to give their children the nourishment of eggs if they so choose (and if they can afford them).
And Hindus have been familiar with, and tolerant of, arguments about religious beliefs for more than 3,000 years (“Who knows then, whence it first came into being? … Whose eye controls this world in highest heaven, he verily knows it, or perhaps he knows not,” Rigveda, Mandala X, Verse 129). It is a serious insult to Indians — and to Hindus in general — to attribute to them the strange claims of a small but well organised political group, who are ready to jump on others for violations of norms of behaviour that the group wants to propagate, armed with beliefs and sentiments that have to be protected from sunlight.
The silencing of dissent, and the generating of fear in the minds of people violate the demands of personal liberty, but also make it very much harder to have a dialogue-based democratic society. The problem is not that Indians have turned intolerant. In fact, quite the contrary. We have been too tolerant even of intolerance. When some people — often members of a minority (in religion or community or scholarship) — are attacked by organised detractors, they need our support. This is not happening adequately right now. And it did not happen adequately earlier as well.
In fact, this phenomenon of intolerance of dissent and of heterodox behaviour did not start with the present government, though it has added substantially to the restrictions already there. M.F. Husain, one of the leading painters of India, was hounded out of his country by relentless persecution led by a small organised group, and he did not get the kind of thundering support that he could have justly expected.
In that ghastly event at least the Indian government was not directly involved (though it certainly could — and should — have done much more to protect him). The government’s complicity was, however, much more direct when India became the first country to ban Salman Rushdie’s Satanic Verses.
So what should we do, as citizens of India who support freedom and liberty? First, we should move away from blaming the Indian Constitution for what it does not say. Second, we should not allow colonial penal codes that impose unfreedoms to remain unchallenged. Third, we should not tolerate the intolerance that undermines our democracy, that impoverishes the lives of many Indians, and that facilitates a culture of impunity of tormentors. Fourth, the courts, particularly the Supreme Court, have good reason to examine comprehensively whether India is not being led seriously astray by the continuation of the rules of the Raj, which we fought so hard to end.
In particular, there is need for judicial scrutiny of the use that organised tormentors make of an imagined entitlement of “not to be offended” (an alleged entitlement that does not seem to exist in this particular form in any other country). Fifth, if some states, under the influence of sectarian groups want to extend these unfreedoms through local legislation (for example, banning particular food), the courts surely have to examine the compatibility of these legislation with the fundamental rights of people, including the right to speech and to personal liberties.
As Indians, we have reason to be proud of our tradition of tolerance and plurality, but we have to work hard to preserve it. The courts have to do their duty (as they are doing — but more is needed), and we have to do ours (indeed much more is surely needed). Vigilance has been long recognised to be the price of freedom.
(Amartya Sen, a Nobel laureate in economics, is Thomas W. Lamont University Professor and professor of economics and philosophy at Harvard University)



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