Courts Have Internalised the Logic That Dissenters Are A Threat : Pratap Bhanu Mehta

Organised by Project 39A, National Law University, Delhi, revolved around the topic of "The Dissenter as Criminal: Reflections on Dissent and the Law".

Mehta commenced the lecture by remarking that dissent as a concept in a range of democracies had fallen upon hard times, and a whole panoply of legal instruments had been brought in by democratic states to make dissent difficult.

He stated that cracking down on dissent was not the prerogative of one political party and how there was a conscious attempt in a democracy to construct a narrative which designated to the dissenter a tone of criminality.

Recalling that the Supreme Court, while adjudicating upon the Bhima Koregaon case, had stated that "dissent was thesafety valve of a democracy", Mehta talked about the relation between dissent and anxiety.

"Actual dissent in any democracy always brings up anxiety. Power always fears and dislikes dissent, because dissent attempts to undo status quo. Today's dissenters may fear future dissenters. There is a perpetual, self-serving anxiety".

Mehta also noted that the term "dissent" was always given a negative connotation.

"It's against something. I think George Eliot was right when she said, 'Right to rebellion of any kind is the right to seek a higher rule and not wander into lawlessness'. Simply saying that you're dissenting, without understanding the normative context of the same, is problematic. Fascists end up using it too".

Mehta then criticized the recent Shaheen Bagh judgement which was delivered by a Supreme Court Bench headed by Justice SK Kaul and stated that it perpetuated the ideas of "appropriate protests".

"It introduced novel and dangerous ideas. It whitewashed the Court's old role in producing a crisis of legitimacy. It's a strange order. It also strangely stated that the Shaheen Bagh protest was suitable to colonial rule and not to a democracy. The idea of unilateralism makes the idea of dissent quite suspect".

Noting how the State and the Courts divided "dissent" into two halves – a protest expressed before all formal means of redressing issues have been exhausted, and an ex post facto protest.

"If the protest is expressed before all other formal means of redressing your problems, then the Court will say why don't you use these settled means. When you do the latter, you get the answer that you're being unilateral. So, basically, if you protest before, you're being a troublemaker, and if you protest after, you're a unilateral anarchist. That is the image of the dissenter".

Equating dissent with "withdrawal of consent", Mehta then shed a light on how dissent was the opposite of consent.

"Dissent is to consent, what falsehood is to truth and heresy is to faith. The more a government claims consent as legitimacy, the more there exists the threat of dissent. That's the paradox that the Shaheen Bagh judgement has captured – why is there a need for dissent in a democracy, they say".

Mehta continued with the lecture by underlining the issue of how the assessment of the morality of a claim of the dissenters was discarded by the authorities and the standing of the protestors was brought into question to discredit them.

"They must be Maoists, they must be jihadists; this is a leftist Maoist jihadists conspiracy. Underlying it is a propensity to lawlessness. When we think of dissent, we think of traditional ways of dissent and its engagement with the State. The thing that happens is that you don't want to engage with the morality of the claims, but you want to dispute the standing of the protestors".

Mehta then elucidated upon the three features of contemporary politics that led to the criminalization of dissent – democracy, preemption, and the sensationalized nature of protest.

"The State is not treating the dissenter as a state of exception. The figure of the dissenter is always construed as a threat to the logic of democratization".

Observing that most Courts had internalized the logic that the dissenter was a threat, Mehta stated that he was not a fan of the Courts and they could not be relied upon to do the job of politics. Further, they were too invested in their own mythology, which could be maintained by imbibing the spirit of judicial evasion – such as suspending habeas corpus writs and political readings of bail.

However, on a positive note, Mehta noted that a dissenter could be protected from charges of unilateralism by the State and the Courts, only with the aid of widespread solidarity. He then expressed his disappointment on how the joint efforts behind the CAA movement were not enough.

He also remarked that the process of delegitimisinga protest was a social process and that the Supreme Court was used to legitimize the crackdown on dissent.

"There is a democratic stamp on the process of criminalization of protest".

The webinar concluded with Mehta expressing that if the State continued to expand its ambit of jurisdiction which denied a citizen of her legitimate standing, then a rebellion would inevitably happen. As John Locke stated, "At that point, it was up to the heavens to decide".