(The writer is an advocate,
High Court’s of A.P. & T.S.
He can be reached at [email protected])
‘Dissent’ is the basic feature of democracy. I do agree that no other cognition, except democracy can vouch for calibre of diversity and dissent. Suppression of dissent is directly or indirectly an assault on the character of tolerance, diversity and plural values. Tolerating the voices we dislike is a sign of mature and strong democracy. A distinguished feature of any democracy is the space offered for legitimate dissent which cannot be trampled by any executive action. But can the dissent be a ‘continuous process’ as against a legislation which has a constitutional presumption and when the matter is sub-judice before the court…?
Post-enactment of the Citizen (Amendment) Act (CAA), we have been witnessing expression of ‘public /political dissent’ at various places, including in university campuses. People are being mobilized to express dissent against the CAA. In a democratic society a citizen has a right to dissent without fear of victimization as long as such a dissent does not lead to violation of any law. Providing a platform to dissent is a sign of respect towards diversity and plural identities.
In late August, 2018 five Indian Civil rights activists were arrested under the Unlawful Activities (Prevention) Act (UAPA) for activities connected to a Dalit rally called Bhima Koregaon in Maharashtra which in fact led to clashes between Hindu nationalists and Dalit crowd. The Hon’ble Supreme Court in the said context had observed that dissent is the safety valve of democracy. If the dissent is not allowed, then a pressure cooker may burst.
The Hon’ble Supreme Court in series of judgments has recognized dissent as a symbol of vibrant democracy and held that a country becomes a jail if citizens are made to move under the ‘scrutinizing gaze’ of the police. The Hon’ble Supreme Court also held that the free flow of opinions and ideas are essential to sustain the collective life of the citizenry.
A sect of people may express dissent against governmental action or legislation. In case of governmental action citizens may resort to public/ political dissent. For instance the Narmadha Bachao Andholan rendered service to the country by creating high-level awareness about environmental and rehabilitation and relief aspects of various projects on the river Narmadha and the need of resettlement of the effected parties.
In such cases since there would not be any scope for expressing dissent before any forum, a public/ political dissent would be the approach. In cases where enactments are made, the forum for dissent would be the legislature. In a democratic society people vote for their representatives and the majority being collective people who voted for the representative, the representative speaks on behalf of the majority who voted him in and votes in such a way as to embody the will of that majority. After due deliberations the legislation is passed and the presumption is that it is constitutionally valid.
Legislature is a platform of dissent. The dissent is recorded. If the constitutional validity of an enactment is to be challenged the forum would be the Hon’ble Supreme Court. The ultimate choice against alleged arbitrary action of the government is the judiciary.
Judiciary is recognized as a custodian of the Constitution. It plays an essential role in maintaining peace and imparting justice and also for the enjoyment of fundamental rights. It is an important pillar for the establishment of good governance.
Political dissent refers to any expression designed to convey dissatisfaction with or opposition to the policies of the government. Such expressions may take forms from vocal disagreements to civil disobedience to the use of violence. Such continuous process of expressing dissent by mobilizing people would disturb the basic peaceful fabric of the society. It may quickly descend into civil disobedience with little warning. It would instill unlawful ideas and may lead to disturbances. Since the public dissent is already expressed in one form or the other, further mobilization is unwarranted.
The Constitutional validity of the CAA is challenged before the Hon’ble Supreme Court. The cases are posted for hearing on 22nd January, 2020 before the Hon’ble Supreme Court.
Therefore, a continuous public dissent as against legislations is not good for the society. The Constitution envisages checks and balances inter-se between the three pillars of the democracy – executive, legislature and judiciary. Therefore, there should be a restraint till the matter is adjudicated by the Hon’ble Supreme Court.