The Right to Dissent in the Socio-legal Context: Reimagining Citizenship, Strengthening Democracy

Shalu Nigam

‘Let’s agree to disagree’ may sum up the gist of the word ‘dissent’ in simple terms. Dissent generally, implies disagreement, criticism, questioning, or protest against the coercive decision or unjust laws and policies imposed by a person/s in authority. Explored constructively, peaceful and nonviolent dissent may lead to dialogue, open discussions, entrenchment of democratic ideas, undoing injustices, and ending oppression. Collective disobedience often results in a constructive social transformation.

However, history depicts that authoritarian rulers have used tools such as the law and violence to suppress dissent, and this repression of diverse voices by authoritarian states continues during modern times. Dissent is being construed detrimentally as disobedience, and dissenters are perceived as a threat to the law-and-order situation by the authoritarian states. Frequently, the dissent is criminalized while the law is weaponized against the dissenters by those in power. Social, legal, and economic sanctions are imposed on those who disobey, criticize or resist the authority.

So, why those in power are hostile to the idea of dissent? Why the tyrannical leaders delegitimize political mobilization or are endangered the expression of free speech? Why are those dissenting or criticizing the state’s actions perceived as traitors or enemies of the state? Instead of constructively accepting positive criticism, why do the authoritarian states construe it as a threat to the nation’s security and integrity? This work dismantles the concept of dissent and unpacks how it has been construed in legal and political terms in India. 

Dismantling the idea of Dissent

“I disapprove of what you say, but I will defend to the death your right to say it”, stated Voltaire, a French philosopher centuries ago. But those in power, those who rule, those who enjoy privileges, or are in a position of authority, frequently disagree with such a proposition. This happens in unequal, hierarchical families, societies, communities, and in all such political contexts where those govern make all attempts to silence and crush the dissenting voices. 

Dissent generally implies a difference of opinion. A dissenting person expresses his or her non-agreement with the enforced law, policy, or coercive decision in various ways. A dissenter may expose lies by stating the facts or the truth, raising questions, criticizing those in power, protesting, or maybe expressing emotions such as anger or rage against complicated challenges.

A dissenter may peacefully demonstrate his or her frustration or may express the pain and sufferings in myriad ways which s/he may endure because of the consequence of an authoritarian, compulsively imposed, and coercive decision. A positive change may occur when those in authority take steps to address the dissenters’ grievances or concerns through dialogue, discussions, debates, or similar other means. In cases of suppression of dissent through measures such as threats, intimidation or violence, the situation may get worse, resulting in conflict, violence, and so on. 

In the political context, several philosophers and scholars have defended and supported the idea of the citizen’s right to dissent. For instance, Henry David Thoreau (1894), in ‘On the Duty of Civil Disobedience’ articulated that individuals should not allow the governments to rule or atrophy their conscience and that they have to resist to ensure that the governments should not impose upon them injustice or make them agents of injustice. He proposed that when faced with unjust laws, individuals should “obey them, amend them or transgress them”. 

Dworkin (1977: 192) argued that people should not be punished for civil disobedience because a person has to break the law when the law wrongly evades his or her rights against the government. Scholars have elaborated on conscientious disobedience of the law and advocated bringing change in the laws that are morally unjust or unacceptable (McCloskey, 1980). Freeman opined that the obligation to obey the law is not absolute but relative and that `the theories of jurisprudence recognize the propriety of non-violent challenges to laws and policies’.

In some cases, Zinn (1991) maintained that absolute obedience to authority may bring stability and order but not justice or fair treatment of all human beings. He explained that a law against murder or rape is essential to deter the crime, but a law that forces people to go to war or a law that protects the rich and penalizes the poor is undesirable. Scott (1985) meticulously depicted how unjust rules are resisted by people across the boundaries of time and geographical parameters. 

MK Gandhi explained that passive resistance is a weapon of the weak. He devised the idea of Satyagraha, or non-violent civil resistance and civil disobedience, to resist the oppression by the British rulers in India. The civil disobedience movements are based on the concept that rulers are vulnerable and dependent on the ruled. For instance, when ordinary people who pay taxes, obey laws, serve in the armed forces, and sustain the economy, are consenting to be ruled, but the day they stop performing their duties, the rulers are compelled to introspect. By weakening the people’s consent to be ruled by tyrannical rulers, non-violent protestors established democratic rule. 

In the USA, President Thomas Jefferson spoke about the law and government as a means to achieve the end of justice and equality, especially the goal of `life, liberty, and pursuit of happiness’ The USA Declaration of Independence 1776 (para 2) stated that the goal of society is to protect the rights of its citizens and “whenever any form of government becomes destructive to these ends, it is the Right of the People to alter and abolish it, and to institute the new government…”.

Also, Martin Luther King Jr, in his Letter from Birmingham Jail on 16 April 1963, while referring to St Augustine and Thomas Aquinas, made a compelling case when he said that unjust law be disobeyed for goodness and that the people have the moral responsibility to break the unjust law (Oppenheimer, 1993). 

Yet, those in power frequently do not tolerate such a right to question authority. Disobedience is seen as an attack on the law-and-order situation. Any rebellion is immediately crushed, and no tolerance is shown for voices criticising the authority. Those in power prefer absolute compliance, perfect order, and stern discipline and deploy the argument of stringent moral values and discipline as the conditions to realize the larger values such as peace, order, security and stability over justice.

The might is perceived as right, whereas those who do not conform to the authority are labelled as wrongdoers or traitors. Besides using force, coercion, or violence against dissenters, the virtue of compliance and passive submission is inculcated and institutionalized through the primary institutions such as family, educational institutions, the religious institution, or even legal institutions, which are premised on the values of acquiescence and chastisement. 

For instance, in any hierarchical, patriarchal family, women, who are at the lower rung of the hierarchy, are being conditioned and socialized to compulsively abide by the decisions made by the elderly members of the family, frequently males. and to remain silent despite facing extremely oppressive circumstances. Privileged men in patriarchal and powerful positions expect undisputed obedience, unquestioned compliance, and unchallenged submission. Frequently, the decisions pertaining to marriage, progeny, career or other daily life choices are being imposed on girls and women without taking into account their will or choices.

Under the guise of discipline, what is imposed is domination in a patriarchal family, and anyone who counters such autocratic decisions is penalized for her disobedience. Violence is used to show women their place in case they make any attempt to raise their voices. Incidents of women being murdered for asserting their choices relating to marriage are prevalent in patriarchal societies. The Hindu fundamentalists evoked concepts such as `love jihad’ to assert dominance in situations of Hindu women marrying Muslim men. 

Likewise, educational institutions have been deploying the methods of corporal punishment, while no religion prefers that its believers ask questions. Any defiance of religious norms is construed as a sin and, therefore, undesirable. As practised today, religion suppresses all forms of interrogation in the guise of blind faith. Any departure from the given norms is construed as deviance and therefore is penalized. Fear and violence are used as tools to silence the defying voices. Those who raise questions are being intimidated or threatened.

The incidents of murders of rationalists have been reported for their `anti-religious’ stance.  Perhaps, those in power fear that they will lose control and influence once their authority is questioned. Similarly, history shows that the despot, tyrannical rulers have demanded unquestioned obedience to their diktats, even if these orders are arbitrary or unfair to the governed. For instance, during the Nazi regime, Hitler ordered to murder of not only Jews but also directed to wipe out his opponents.

The Nazi government enacted the Reich citizenship law, declaring that only those with German blood were eligible to be Reich citizens (Salwin, 1946). Germans who continued their interaction with Jews were labelled as `traitors’ (Gordon, 1984). Arendt (1951) opined that these laws were used as instruments to enforce `totalitarianism’. Benito Mussolini crushed his opponents and dismantled the democratic government of Italy to become a totalitarian fascist leader. Gulags or forced labour camps were established during the regime of Joseph Stalin in the Soviet Union to eliminate the dissenting members of the Communist Party or anyone else who dared to challenge the leader. 

In the same way, during colonial rule in India, the imperial rulers enacted several harsh laws to stifle dissent under the umbrella provisions of the offence against the state to protect itself from treason and rebellion. For instance, the British rulers enacted the draconian Rowlatt Act in 1919, and those who peacefully protested were brutally attacked. On 13 April 1919, General Dyer openly shot and massacred thousands of innocent unarmed people peacefully protesting at Jallianwala Bagh in Amritsar against this law.

MK Gandhi and other freedom fighters started the non-cooperation movement that inspired Indians to revoke their cooperation against the imperial regime. The colonial masters deployed severe legal provisions to imprison the freedom fighters to suppress dissent. This includes the sedition law or Section 124A of the Indian Penal Code to clamp down on resistance. Under the law, ‘signs, visible representations, or spoken or written words that can cause hatred or contempt, or excite disaffection towards the government’ amount to sedition.

Laws such as Section 144 of the Criminal Procedure Code have been enacted as tools of domination to restrain people’s rights with the purpose of containing unrest and crushing rebellion during the British Raj, and these harsh legal provisions continue to exist today, decades after the country gained independence. However, the history of resistance against colonization in India and the freedom struggle depicts how common people have used resistance to gain independence from imperial rule, and this `battle between the exercise of rights and exercise of power’ continued in post-colonial India (Kannabiran, 2004). 

In all such situations of oppression and domination, questioning authority is perceived as defiance and, therefore, undesirable and a threat to the law-and-order situation. World over, disobedience to authority is considered a breach of moral as well as statutory enactments by authoritarian states. Those in power command total obedience, submission, and allegiance. The repressive states are crushing any defiance, question or criticism. The state fails to recognize the moral claim of a citizen to disobey the law.

Threats to the nation’s integrity, security, terrorism, and similar concepts are frequently evoked to justify the suppression of dissenting actions. Rather than engaging in dialogues and discussions, which are the premises and pillars of democracy, the authoritarian states are crushing those who resist and act against all notions relating to the acceptance of any nonconforming ideas or diverse values. 

Dissent in the Post-Independent India

Inspired by the anti-colonial struggles, the Constitution of India is founded on democratic ideals and promises liberty, equality, and social justice to all its citizens. Article 19 of the Constitution guarantees freedom of speech and expression, freedom to assemble peacefully without arms and the freedom to form associations and unions.

Despite this, the legacy of colonial rule and feudal mindset predominated in the post-colonial period to construe passive, compliant subjects rather than proactive citizens, and this led to the widening gap between the rulers and ruled. Kannabiran (2004:19) explained, 

“Our political struggle retained with total composure the entire colonial legal system which had effectively been used against the freedom struggle at various stages”.

This is evident by the fact that the successive governments who ruled India post-independence made no efforts to withdraw or repeal the ghastly laws enacted by the colonial rulers. Sammadar (2016) opined that the colonial practices of law-making in decolonized societies resulted in the fiasco, as the rule of law could not be maintained. The governmental regimes’ abuse of disciplining rules reflects the governmentalities on Foucauldian lines. The Supreme Court in State of Gujarat v Fiddali Badruddin Mithibarwala (1964) noted, 

  “There is no warrant for holding that at the stroke of midnight of 25 January 1950, all our pre-existing political institutions ceased to exist, and in the next moment arose a new set of institutions completely unrelated to the past… It did not seek to destroy the past institutions; it raised an edifice on what existed before”. 

The colonial rulers were vested with the power to invoke the provisions of criminal laws, such as charges of treason, waging war, and conspiracy against ordinary citizens who criticize the state’s actions. Similarly, the state in post-independent India has been deploying sets of laws to silence those who criticize the government (Kalhan et al. 2006). The democratic ideas enshrined in the Constitution of India are frequently overlooked and neglected when those in power make and enforce draconian laws against angry or protesting citizens. 

For instance, despite the existence of constitutional guarantees, the emergency rule was imposed for 21 months from 25 June 1975 to 21 March 1977 by then Prime Minister Indira Gandhi. During this period, the Prime Minister had the authority to rule by decree while suspending civil liberties. Major institutions were dismantled, and the media was shut down. An obituary that appeared in the Times of India read, “Democracy, beloved husband of truth, loving father of liberty, brother of faith, hope and justice expired on June 26” (Joseph, 2007).

The constitution was amended then, though some of these amendments were later revoked or nullified. Several draconian detention laws were enacted, such as the Maintenance of Internal Security Act 1971, making the state’s actions immune to judicial review even on the grounds of breaching fundamental rights. Dissent was repressed while the laws such as the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 were used to target the opponents. These actions have been justified in the guise of upholding the integrity of the country and the security of the state. 

Kannabiran (2004) noted, “This sanction of impunity throws into question the legitimacy of governance and order and points to the decay of the system” (p.12). The situation led to political unrest, where the people’s movements grew stronger against the misrule. Jai Prakash Narayan led agitation for Sampoorna Kranti, or total revolution, in parallel with several other movements (Nayak and Kumar, 2009-10).

He appealed to the armed forces, government officers and other employees ‘not to obey the illegal and immoral orders of the government’ (Saxena, 2020).  Indira Gandhi lost the elections in 1977. Dissent revived democracy, then.  

Laws are Weaponized to Crush Dissent

Over the decades since independence, and even during the colonial period, the people of India have resisted unjust and arbitrary laws and policies. The civil society in India has constantly monitored the activities of the government and has provided feedback about the policies and actions through consultations, dialogues, meetings, discussions, agitations, public meetings and demonstrations to urge the governments to rectify their mistakes. Yet, successive governments took steps to suppress the dissent.

Rather, in contradiction, many draconian legal provisions such as the Unlawful Activities Prevention Act (UAPA) 1967; Jammu & Kashmir Public Safety Act (PSA), 1978; the Terrorist and Disruptive Activities Prevention Act (TADA), 1987, Prevention of Terrorism Act, (POTA), 2002, and Prevention of Money-Laundering Act (PMLA), 2002, are all being enacted by the paranoid state and are liberally misused to detain dissenting persons without trial. The underlying purpose is perhaps to crush any rebellion, peaceful protest or criticism of the authority. 

Dhagamwar (2006) demonstrated how over the decades, the state had twisted the law to establish control over the tribal population and their territory, which resulted in the loss of their land and resources and damaged their history and identity. More precisely, in specific areas such as the North East region, Jammu and Kashmir (Javeed, 2021), laws are used to repress citizens despite the voices being raised to do away with these provisions (Sundar, 2018).

Moreover, draconian laws such as the Armed Forces Special Power Act, National Security Act, and Unlawful Activities Prevention Act all are being deployed in the guise of curbing terrorism and are being used to crush the voices of human rights defenders, minorities, and the marginalized. The patterns of the state’s domination are shaped not only by law but also by extra-legal or illegal practices. These laws exemplified how the state corrupted the rule of law through tremendous arbitrary powers. The authoritarian state considered dissent as deviance, while the criminalization of ordinary activities and expression increased with the rise of despotism (Chander Mani, 2021).

In the neoliberal economy, the law became a tool to prosecute those who opposed the onslaught of neoliberal majoritarian ideology. The convergence and contradiction between the two hegemonic projects of neoliberalism and Hindutva reconstructed the gender relations in contemporary India to construe a unique `hindutavised neoliberal subjectivity’. The struggles for social justice are being violently crushed by the state using its militant power.

However, at the same time, the resistance and protests by the citizens, such as `Not in my Name’, countered the hate and inaction by the state, whereas through the spate of decisions, the Supreme Court as well as the High Courts in India, have interpreted the legal provisions to expand the idea of free speech.  

The Resistance continued… 

Further, in the neoliberal fascist regime, the law became a tool to prosecute those who opposed the onslaught of neoliberal majoritarian ideology. New anti-people laws are being enacted, such as the three farm laws (Datla, 2020) as well as the Citizenship Amendment Act (Nigam, 2020). Both these sets of laws have been perceived as unjust by the majority of people in the country. Critiques pointed out that the Parliament has passed these without discussion and debates.

The apparatus of law is seized to foster division and to inculcate hate. Protest against anti-people laws continued non-violently (Nigam, 2021), where workers, students, and others came together (Newsclick. in, 2020). This defiance was not tolerated, and the majoritarian state used coercive measures against the agitators and prevented them from resisting by putting up fences and barbed wires and using gas shells and water cannons. The struggles for social justice are being violently crushed by the state using its militant power. 

Protestors have been demonized, jailed, tortured, or murdered (India Today, 2021). Several people lost their lives during the agitation (Jaswal, 2021). The Supreme Court in both cases held that though the citizens’ right to protest cannot be curtailed, there are limitations to it, such as there cannot be continuous occupation of public places affecting the rights of others (See, Amit Sahni v commissioner of Police, also, Rakesh Vaishnav v Union of India).

Moreover, it is because of the continuous assertion of rights by the common people that the state, after more than a year of enacting the controversial agricultural laws, was forced to repeal these through the motion introduced in the Parliament on 29 November 2021 (The Economic Times, 2021). 

Hence, the rule of law, when abused by the state, on the one hand, at the same time, it is also utilized by the popular citizenship struggles, wherein law is used as a tool to negotiate for rights and to reimagine justice. Not only through the major agitations or protests, but the battle between the citizens and the state continue to take myriad shape and forms. For instance, recently, 18-year-old Barshashree Buragohain wrote a poem that reads, “One more step in the direction of the sun of liberty, I will commit treason once more” in her Facebook post, and she was detained for 63 days for writing an `anti-national poem’ where in the FIR these lines were construed as `criminal conspiracy’, and an `intent to wage war against the government’.

In another stance, the poetess who wrote a powerful satire titled Shav Vahini Ganga that described the Prime Minister as a `naked king ruling a Ram Rajya’ while depicting the tragedy during the pandemic caused by the aloofness and mismanagement was trolled with abuse and misogyny. 

Also, human rights defenders are being targeted by the repressive state and those working to protect the rights of the marginalized, and the indigenous communities are being attacked, trolled, murdered, harassed, falsely implicated, intimidated, criminalized, and detained while ignoring the due process of law. For instance, the Bhima-Koregaon battle shows how the state weaponizes the legal system against activists and civil society actors, including academic and legal professionals. ‘Trial by process’ is the technique deployed by the state in many instances to perpetuate injustices against proactive citizens. The neoliberal state has detained the activists and students under UAPA and other such laws. 

Those working on the issues such as caste-based discrimination, environment, land rights, right to information, business and human rights are particularly vulnerable to undue arbitrary intimidation, arrest, threat, restriction and detention. Poets, journalists, artists, lawyers, activists, and many other such professionals are targeted because the ruling elite perceives them as a threat. Father Stan Swamy wrote in prison, ‘Caged birds can still sing’ while envisioning the courage of those incarcerated and oppressed by those in power.

These new forms of emerging challenges before the HRDs call for rigorous efforts to safeguard their rights. Teesta Setalvad, Sanjiv Bhatt, RB Sreekumar, and others are charged with conspiracy. The report by the PUCL titled `UAPA: Criminalizing Dissent and State Terror’. stated that the conviction rate is less than three per cent in the arrest made under the UAPA law.  

Recently, the matter of women wrestlers came to light when they protested for several months demanding the arrest of Brij Bhushan Saran Singh, a ruling party MLA, and the President of the Wrestling Federation of India, whom they accused of sexual harassment while he continues to be in the powerful positions even after the cases have been filed against him. The police registered their complaint only after the intervention by the Supreme Court. On 28 May 2023, several protestors were detained by the police when they called for a maha-panchayat before the new parliament house. The situation highlighted the fact that the absolute authority of the state may create anarchy; therefore, vigilant citizenship is required to check the arbitrary abuse of power. 

Scrutiny of many other such incidents happening around continuously depicts the tumultuous situation that indicates dangers of law being used as an instrument by the states to propagate the ideology of hate and division, to deny rights, and at times, such actions have resulted in mass extermination and genocide. The situation indicated that the law promises justice. The law guarantees rights. Law has a potential for emancipation. Law is a source of hope for the vulnerable. Yet, no law is perfect. Not every law enacted is just or serves the goal of justice. Not all laws promote equality or aim for distributive or restorative justice.

Moreover, laws are being made and implemented and enforced by men. The law confers authority to those who are powerful and absolute power is detrimental; it needs to be monitored and checked. Analyzing the history of colonization and freedom struggle, state-sponsored violence, and genocides in the post-colonial states reveal the imposition of anarchy imposed by the ruling regimes and resistance by the citizens against such arbitrary actions. There are no measures devised to prevent the autocratic states that push anarchy, and therefore, the resistance by citizens prevents the forceful imposition of lawlessness.

When those in power command the duty to obey the law, the subaltern citizens are confronting the state authorities, perhaps because they see no other remedy or for them; their subsistence and survival is an ultimate question. In many social movements, the subalterns, driven by socioeconomic compulsions, also demanded their rights. Experiences reveal that frequently, the state protects the rich while penalizing the poor. 

The timeline of continuous rights violations shows how the paternalist state violated citizens’ rights, yet the individual citizens, peoples’ movements, and collectives expressed their aspirations when they pressured the state to enact people-friendly democratic laws and demanded appropriate implementation of the existing laws.

Those who resist, perhaps, are guided by their `spirit of free inquiry’, or the `pursuit of right’, fulfilling their obligation to their own conscience, taking steps to reclaim dignity, upholding moral ideals, expressing their vision of the `greater good’, and therefore, performing their duties as citizens, or may be guided by the notion that law which is unjust needs to be contested or the state which deviated from the principle of democracy has no moral authority to rule.

The despotic states are criminalizing dissent

Not only in India but it is also in almost all continents that, in recent times, political dissent or expression of angry citizenship is posing a complicated challenge to democratic societies where the emerging far-right political leadership is undermining democracy while ignoring the underlying grievances of the majority of the segment of the society. In increasingly polarized societies, many governments are curbing civil liberties, are failing to engage effectively with dissenting voices, and are aggravating social divisions and fragmentation. In the neoliberal economy, states are twisting and manipulating the law to deny citizens their right to life with dignity. 

In the contemporary world, state-sponsored violence is broadening to include direct political violence, wars, genocide, using technology for citizens’ surveillance, invading privacy, draconian laws against activists, filing SLAPP suits against victims to silence their voices, repressing critiques, and also the denial of welfare and social security provisions affecting the quality of life of citizens.

Tyrannical regimes abuse the power of law to inflict trauma in the lives of millions in the recent situations of rising authoritarianism all over the world, including South Asia. Yet, the world over, the subaltern struggles are shaping the emancipatory imagination while demanding equal citizenship rights and, in the process, are ensuring to curtail the arbitrary whims of the sovereign while redefining and reshaping the idea of citizenship. 

Democracy implies that all citizens in the nation-state or all members within a family or a community are considered equals and enjoy freedom and entitlement to voice their opinions, even when these opinions are unpopular. Democracy is about consensus, even though it may be exhausting. Morally justified criticism, dissent, protests, or righteous struggles against injustices are essential to the existence of any democracy.

Political dissent is frequently associated with courageous resistance against the hegemonic power. Scholars have argued for civil disobedience against the repressive government as an alternative to normal politics (Cohen, 1972). Disobedient citizens have generated publicity, initiated discussions, and built solidarity to challenge everyday practices (Walzer, 1971). Collective disobedience frequently results in positive social transformation.

Activism to promote and foster democratic norms

In his famous dystopian novel Nineteen Eighty-Four (1949), George Orwell wrote, “Freedom is the freedom to say that two plus two make four. If that is granted, all else follows”. This holds true in contemporary times when the difference between the rulers and the ruled is widening. More specifically, the privileged and the powerful are negating the entitlements and claims of those on the margins. In such a repressive situation, focusing on justice from the perspective of those on the margins is essential, as their collective welfare and survival are at stake.

Noncompliance, therefore, becomes essential in situations where the norms or the laws are unjust to uproot the inegalitarian system and transform the biased order to replace it with a peaceful, just, and fair society. As long as this world remains unequal and oppressive, possibly, those at the margins may continue to resist in a multitude of ways to reclaim their rights. In other words, the subaltern struggles are shaping the emancipatory imagination while demanding equal citizenship rights from the state and, in the process, are ensuring to curtail the arbitrary whims of the sovereign while redefining and reshaping the idea of citizenship.

Civil disobedience has been used as a tool for revolution against the tyrannical regime, to overthrow the despot rulers, and to establish democracy in the past. Or, as Kannabiran (2004: 53) put it, 

“The concepts of rights evolved in the course of struggles from slave to subjects to free citizens. The parallel evolution of means to control people has been brutal and naked power to sophisticated methods. Power continues to be adversarial to rights. The history of rights has been a continuous attempt to restrain power and achieve a humane, mature society”. 

References

Disclaimer: All views expressed in the article belong solely to the author and not necessarily to the organisation.

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