Justice A P Shah   | Photo Credit: Prashant Nakwe

The former Chairman of the Law Commission on how enforced cultural nationalism will harm India in the long run

Former Chief Justice of the Delhi High Court Ajit Prakash Shah was hailed as the co-architect of the landmark judgment in 2009 that decriminalised homosexuality. Justice Shah, also a former Chairman of the Law Commission, may have retired but he continues to speak openly on a range of issues, including free speech. In this interview, he discusses the current debate on the right to privacy, the Supreme Court judgment on the national anthem, and “enforced cultural nationalism”. Excerpts:

In your M.N. Roy Memorial Lecture on ‘Free Speech, Nationalism and Sedition’ this year, you began with his words and said Roy’s views on nationalism and its attendant dangers still resonate today. What worries you?

What is of utmost concern in the so-called “nationalism” debate is what (Nigerian writer) Chimamanda Ngozi Adichie calls “the danger of a single story”, or the danger of understanding an idea only from one perspective. If we restrict our understanding of nationalism, we ignore the multiplicity of views that exist. Nazism and fascism were both ugly manifestations of nationalism. They were irrational and excessive. In contrast, we have Gandhi’s and Nehru’s nationalism, which was anti-colonial and sought to be all-inclusive; it was not based on religion.

Today, in India, we do not talk of inclusive nationalism. What we have is a situation of enforced cultural nationalism. It is a culture of hate that is being perpetrated in the name of nationalism. There are repeated lynchings in the name of cow protection — from Mohammad Akhlaq to Junaid Khan, it is all very disturbing, to say the least. There is an invasion of university space. Independent thinking is being killed. We seem to have forgotten the all-inclusive nationalism from half a century ago, and we have inverted it into something that is undesirable.

As Tagore said, when the nation becomes powerful at the cost of the harmony of social life, that day is an evil day for humanity. What do we have today instead? People speak of removing the thoughts of Tagore from textbooks!

You posed a question on the defining characteristic of a nation, whether it’s the territorial boundary or the people. What does nation mean to you?

The defining characteristic of a nation changes with time, situation and context. About 150 years ago, countries were still isolated from each other, and an identity based on geography was necessary to bring about order in chaos. But in a world that is increasingly international, where identities of ordinary people have intermingled so greatly that they are no longer distinguishable from one another, it becomes hard to defend the idea of a nation based only on territorial boundary. Indeed, as M.N. Roy put it, the idea may even well be regarded as an “antiquated cult”. If we allow territorial identity to overwhelm our narrative, we may regress into a situation where people become blinded by a nationality driven by irrationality, which in turn may have extreme consequences. Sadly, this is the situation we seem to have found ourselves in today.

Connected to this is the trend of manufacturing affection for the state and government — be it the Prime Minister’s office, the Army, the police, to call them to question is to spread disaffection against the state. And linked to that is: what prevents us from striking down the law on sedition?

We are in a situation today where any criticism of certain offices is branded as anti-national and sedition. Whether it is any wrongdoing, fake encounters in the Northeast, even speaking about these is enough to label you seditious. We are also acquiring a reputation of being singularly humourless, where even a parody is not tolerated!

In India, we have had a long, celebrated legal history of fighting against the law of sedition. Gandhi, Tilak and their ilk have all been part of building the jurisprudence around this. The [Supreme] Court agrees that mere criticism is not sedition. But that does not prevent prosecutions from taking place. Any dissent is taken as sedition. This tendency is very disturbing.

Gandhi said that we cannot expect the law to manufacture affection for the state, that we must allow disaffection to be fully expressed unless it incites violence. This is also what Kedar Nath Singh v the State of Bihar (1962) says. The law is clear that mere sloganeering is not enough, and has to be accompanied by a call for violence. But when an FIR is registered, the question of interpretation of the law in line with the Supreme Court does not arise. While the court may eventually acquit the person accused, the trial itself becomes the punishment. And worst of all, through the harassment it causes, the trial acts as the deterrent against any voice of dissent or criticism. As a result, the broad scope of Section 124-A (of the IPC) allows the state to go after those who challenge its power, whether it is the JNU students, activists such as Hardik Patel and Binayak Sen, authors such as Arundhati Roy, cartoonists such as Aseem Trivedi, or the villagers of Idinthakarai in Tamil Nadu protesting against the Kudankulam nuclear power plant.

You are defending free speech, yet we are all aware of the restrictions imposed by Article 19(2) of the Constitution. Has the time come to review it?

Agreed, 19(2) has its restrictions. But the court has also read these restrictions very narrowly. The court has always said the restrictions to free speech must be reasonable and not excessive or arbitrary. And free speech itself has always been linked to democratic ideals by the court. For example, in Anand Dighe’s case (in 2001, relating to the prohibition of performance of the Marathi play Mee Nathuram Godse Boltoy), the court highlighted that respect for, and tolerance of, a “diversity of viewpoints” was essential to sustain a democratic society and government. Similarly, in Anand Patwardhan’s case (in 1996, relating to the refusal of Doordarshan to telecast his documentary film In Memory of Friends), the court said that the state cannot prevent open discussion, regardless of how hateful such discussion was to the state’s policies. But the Supreme Court put it best, perhaps, in S. Rangarajan v P. Jagjivan Ram (1989), when it said that “in a democracy it is not necessary that everyone should sing the same song”.

The response to criticism is not to shut it down, but to engage with, and respond to, the speaker. Free speech must be countered by more speech, not by acts of moral vigilantism. Such acts have absolutely no place in our constitutional polity and democracy.

What prevents us from striking down the law on sedition, you ask. The immense power that the state wields through this provision makes it difficult to let go of the law entirely. It’s as straightforward as that.

You said that the interim order of the Supreme Court on the national anthem has actually undermined patriotism. How?

The right to free speech and expression also includes the right not to speak or express ourselves. However, under the guise of “law”, with this order, the court has now restricted our fundamental rights. Making something compulsory, like standing up when a national anthem is sung, undermines the very meaning of that action, and the respect that is normally accorded to it. It is a form of what I would call “conscripted nationalism”.

The Madras High Court has replayed this with its recent order that ‘Vande Mataram’ must be sung regularly in educational institutions and elsewhere, including workplaces like factories and offices! The courts have failed to recognise that such actions — of singing or standing up — are now no longer genuine acts of nationalism. They have now become a performance. People now sing or stand not because they truly respect the sentiment that these songs or poems convey, but because they are afraid of being beaten up. In effect, orders like these have actually undermined patriotism amongst fellow Indians.

The judiciary is supposed to be the protector of individual liberties. It is indeed disturbing that it should itself mandate such restrictions.

Do you see this as a consequence of majoritarianism?

I strongly believe that actions like these — preventing people from eating the food they want, effectively forcing a life choice on them — undermine any feelings of nationalism and unity. This is nothing but enforced cultural nationalism. It is unimaginable to expect that a country as diverse as India can be expected to lead a homogenised existence, with a single ideology or monochromatic way of living, or a standard diet.

I practise yoga regularly, for example, and I believe it is a holistic practice. But that does not mean that I will spend the rest of my time foisting yoga upon others. I do not endorse the idea of making yoga compulsory, as if it were a badge of nationalism and Hindu pride.

In the same vein, recent reports of installing a military tank on the JNU campus to “instil nationalism” in the students is absurd! Enforced nationalism cannot promote true culture. People and cultures, regardless of belonging to a particular class or geography, can truly grow and evolve only if they can transcend all social and territorial limitations.

The right to privacy is currently being looked into by the Supreme Court. Is it absolute?

The right to privacy has historically been read under Articles 19 and 21 of the Constitution by the court. From Govind v State of Madhya Pradesh (1975) to NALSA v Union of India (2014), the Supreme Court has repeated the existence of a right to privacy under the Constitution. One concept emerging throughout is that the right to privacy cannot be absolute. It must be restricted by law, and must be within the parameters of Article 19(2).

The court itself, in the latest hearing, has observed that one of the immediate consequences of declaring privacy a fundamental right could be the creation of a corresponding obligation on the government to bring in a regulatory framework. Of course, a regulatory framework is needed. India is one of the few countries which does not have a privacy law or data protection law.

There are many kinds of privacy: privacy of space, privacy of behaviour, privacy of decisions and privacy of information. Privacy even exists in the right to be left alone, or the right to be forgotten. Underlying all concepts of privacy is the principle of dignity. The lawyers in the present matter have argued that it would be more proper if the court, after recognising the right, does not define the contours of this right, and decides its delineation on a case-to-case basis instead. I agree. This is a case involving the citizen versus the state. The court must stand by the citizens.