The Law Of Sedition Is Being Misused Against Those Who Criticise The Establishment: Prashant Bhushan

The country is facing an "institutional crisis" as institution after institution appear to collapse, said lawyer-activist Prashant Bhushan today. He was speaking at the Nani Palkhiwala Memorial Lecture event at New Delhi. Justice (Rtd) Madan Lokur delivered the memorial lecture. 

He said that independence of institutions like CBI, CVC,RBI, Information Commission, Election Commission and CAG etc was being compromised.

"The spectacle of the CBI is for all to see. The Central Vigilance Commission is also manned by people facing serious charges. Almost half the posts in Information Commissions lie vacant and the remaining are largely filled by plaint bureaucrats. The independence of the Reserve bank of India is also threatened as is the independence of the CAG and the Election Commission with the government alone having the power to fill up posts to those offices", he said.

"The judiciary has also not been spared the assault by the government and faces numerous controversies today", he further said.

He commented about increasing power of lynch-mobs, misuse of draconian laws of sedition and statues law UAPA and NSA to stifle dissent, rise in encounter killing etc.

"The law of sedition is being misused against those who criticise or lampoon the establishment and politicians in power. Draconian laws like UAPA and NSA are being used to imprison and prevent bail from being granted to dalit activists like Chandra Shekar from the Bhim Army or some of the most respected human rights activists and lawyers like Sudha Bharadwaj, Surendra Gadling, Shoma Sen, etc. Killing people from minority communities in the guise of encounters has become the order of the day, especially in Uttar Pradesh".
 

He added that the mainstream media has also lost its independent values and has turned "discussion and debate into a gladiatorial spectacle of shouting voices".

The only silver lining in media, according to him, is the growth of web based portals and social media, which have democratised media space.

He stated that Shri Palkhivala would have been highly anguished and alarmed at the rapid decline of the state of our polity and its institutions.

"We need a herculean effort today to save and reclaim the republic founded by our Constitution makers. For this, we will have to reform and rebuild our institutions, we will have to get rid of several colonial, antiquated, anti democratic and anti people laws such as UAPA, NSA, sedition, criminal contempt, criminal defamation, etc. and equally importantly we will have to reform our policies to lay the foundations for a welfare state guaranteeing the right to employment, pension for the elderly and the disabled, decent health and education services for all", exhorted Bhushan.

Yet, he did not wholly abandon hope, and said that the growth of civil society was reassuring.

"Despite the collapse of institutions and the dismal state of affairs, we are seeing a resurgence of civil society activism in the country. The number and diversity of human rights organisations have grown, there is a strong dalit movement with very capable young leaders. There is also a new youth leadership taking shape in the country. The spirit of resistance is strong and growing. Therefore, despite the distressing state of affairs in our country, this is not a time for despair", he said while concluding.

Read Full Speech :

Shri Nani Palkhivala was a towering stalwart in the legal firmament - an eminent jurist and economist, whom I had the privilege of watching when an attempt was made by the government and the then Chief Justice during the emergency, to overturn the Keshwanand Bharati case. It was Shri Palkhivala's brilliance that held the entire Supreme Court to attention in the Keshwanand Bharati case, where he made the court lay down that even a Constitutional amendment cannot be allowed to alter the basic structure of the Constitution. He thereafter wrote a book Our Constitution Defaced and Defiled, with extracts from his speeches and writings reflecting his commitment to public causes and where he also outlined various attempts to destroy the Constitution. The rule of law for Mr. Palkhivala therefore meant not merely law and order but rather the rule of the Constitution and in particular, a society where fundamental rights guaranteed by the Constitution are zealously protected and enforced. I read out as often quoted from his book and which will form the basis for my the remainder of my lecture,

"Our Constitution is primarily shaped and moulded for the common man. It is a Constitution not meant for the ruler, but the ranker, the tramp on the road, the slave with a sack on his shoulders, picked on with the goad, the man with too weighty a burden, too weary a load."

The fundamental rights guaranteed by our Constitution primarily by Articles 14, 19 and 21 have been expansively interpreted. Article 14 which guarantees non discrimination by the State has been interpreted to mean non arbitrary behaviour as well, by the State. Article 19(1)(a) guaranteeing freedom of speech and expression has been interpreted to mean freedom of media, the right to privacy, the right to information, the right to protest and peaceful assembly, etc. The right to life and liberty guaranteed by Article 21 has been interpreted as not merely the right to an animal existence but the right to live with dignity and therefore the right to be given all that is required for a life of dignity. This includes, the right to food, water, shelter, basic health and education, clean and safe environment, a corruption free society, fair conditions in jails and asylums, not to be handcuffed etc. In particular the rights under article 14 and 21 are available to all persons including refugees who may not be citizens. Article 21 has also been used by the court as a basis for ordering institutional reforms in the CBI, police, civil services, etc. on the basis that, those reforms are necessary to get the CBI, the police and the civil services to implement the rights of citizens.

However, if we ask the question whether and to what extent citizens are being able to enjoy the fundamental rights guaranteed by the Constitution and therefore whether we can say that our country is effectively being governed by the rule of law, the honest answer to that would be, very little. World Bank data indicates that 44% of children under the age of 5 are underweight. About 4 lakh farmers have committed suicide in this country in the last 20 years due to acute poverty. Large section of our children can't get education, large sections of our people don't have access to basic health services or to justice or to a fair environment. Inequalities are such that the richest 9 persons in the country, own more wealth than the bottom 60 crores. Lynch mobs roam the streets in many parts of the country, battering and killing dalits and minorities in particular, while the police remain bystanders. There are lynch mobs also on the social media who abuse and threaten those whose views they are opposed to and especially those who speak against the establishment. The law of sedition is being misused against those who criticise or lampoon the establishment and politicians in power. Draconian laws like UAPA and NSA are being used to imprison and prevent bail from being granted to dalit activists like Chandra Shekar from the Bhim Army or some of the most respected human rights activists and lawyers like Sudha Bharadwaj, Surendra Gadling, Shoma Sen, etc. Killing people from minority communities in the guise of encounters has become the order of the day, especially in Uttar Pradesh. More than a 60 such people have been killed in the last two years and many other grievously injured and left to die a slow death in jails. More than a thousand people have been languishing in jails in Assam for the last several years on the allegation that they are foreigners and about 30 people have committed suicide in Assam after being left out of the national register of citizens (almost 40 lakh peopCountry Faces Instututional Crisis As Institutions Appear To Collapse
 Country Faces Instututional Crisis As Institutions Appear To Collapse 

le have been left out of the draft register) in a process that has been marked by arbitrariness and haste. Forty thousand Rohingya refugees, who have escaped one of the most brutal genocides in history in Myanmar and are in India are bearing the brunt of a communal establishment and their lynch mobs.

In sum, our republic has failed a majority of its citizens and it would be no exaggeration to say that today the republic itself is in danger and faces a severe institutional crisis as institution after institution appear to collapse. The spectacle of the CBI is for all to see. The Central Vigilance Commission is also manned by people facing serious charges. Almost half the posts in Information Commissions lie vacant and the remaining are largely filled by plaint bureaucrats. The independence of the Reserve bank of India is also threatened as is the independence of the CAG and the Election Commission with the government alone having the power to fill up posts to those offices. Much of the mainstream media has lost its independence and has turned discussion and debate into a gladiatorial spectacle of shouting voices. Fortunately however, the origin and growth of internet based web portals and the growth of social media has democratised the media and allowed individuals and small media organisations such as The Wire, Scroll, NewsClick etc, which function on small budgets to have a large reach. Some of these organisations are doing the job which the main stream media should be doing, that is, talking about important issues and questioning the government for its failure. The judiciary has also not been spared the assault by the government and faces numerous controversies today.

I am sure Shri Palkhivala would have been highly anguished and alarmed at the rapid decline of the state of our polity and its institutions. We need a herculean effort today to save and reclaim the republic founded by our Constitution makers. For this, we will have to reform and rebuild our institutions, we will have to get rid of several colonial, antiquated, anti democratic and anti people laws such as UAPA, NSA, sedition, criminal contempt, criminal defamation, etc. and equally importantly we will have to reform our policies to lay the foundations for a welfare state guaranteeing the right to employment, pension for the elderly and the disabled, decent health and education services for all. Recently, precisely this exercise was carried out by a group of eminent and concerned citizens and they have produced a document called "Reclaiming the republic" which contains the most urgent and essential reforms in law, policies and institutions which are required to save and reclaim the republic and lay down the foundations for a welfare state. To implement all this would require a mammoth effort by concerned citizens especially the youth in this country who are the main stakeholders in the future of our republic.

Despite the collapse of institutions and the dismal state of affairs, we are seeing a resurgence of civil society activism in the country. The number and diversity of human rights organisations have grown, there is a strong dalit movement with very capable young leaders. There is also a new youth leadership taking shape in the country. The spirit of resistance is strong and growing. Therefore, despite the distressing state of affairs in our country, this is not a time for despair. Our society has shown great resilience and we can certainly emerge from the current crisis much stronger and even more resilient than before. Mr. Palkivala would have asked for nothing else from our citizens and our youth. I am sure that had he been alive he would be at the vanguard of this movement to reclaim our republic. I end with a quote from his book:

"You may not believe in a fate which overtakes men however they act; but you have to believe in a fate which overtakes men unless they act."

― Nani Palkhiwala,Our Constitution Defaced and Defiled