Tolerance vs Intolerance: Will the rule of law prevail?
Arunabh Chowdhury
Advocate, Supreme Court Of India
The recent incidents of moblynching across the country and the growing intolerance in the wake of the much debated upon and controversial release of a 'film' have raised alarming questions as to where we are headed for as a 'democracy'.
These events are a sad reflection on our body polity. India, as a nation, has invariably stood up for human rights and respected the freedom of speech and expression. In turn, the courts have zealously guarded these rights. Destruction of public property can by no means be a justification for any cause as a mode of protest in a country which is still struggling to feed millions. Singling out helpless people and beating them to death is not only barbaric, but is an unwashable stain on the face of our country which has always upheld and celebrated its diversity and democracy.
Law and order under our Constitution is a State subject and it is the primary and indispensable duty of the State to protect its citizens and property.The banning of the 'film' saw the immediate intervention of the court that stepped in to retsrain the States from, in any manner, prohibiting the screening of the film by reminding the State that it is the paramount obligation of the State to maintain law and order. The incidents of mob lynching too made the Supreme Court take note of and issue guidelines of punitive and remedial nature. In Tehseen S Poonawala's case (judgment dated 17.07.2018) the Supreme Court of India speaking through the Hon'ble Chief Justice ruefully observed and quote: "Lynching is an affront to the rule of law and to the exalted values of the Constitution itself. We may say without any fear of contradiction that lynching by unruly mobs and barbaric violence arising out of incitement and instigation cannot be allowed to become the order of the day. Such vigilantism, be it for whatever purpose or borne out of whatever cause, has the effect of undermining the legal and formal institutions of the State and altering the constitutional order. These extrajudicial attempts under the guise of protection of the law have to be nipped in the bud; lest it would lead to rise of anarchy and lawlessness, which would plague and corrode the nation like an epidemic. The tumultuous dark clouds of vigilantism have the effect of shrouding the glorious ways of democracy and justice leading to tragic breakdown of the law and transgressing all forms of civility and humanity. Unless these incidents are controlled, the day is not far when such monstrosity in the name of self-professed morality is likely to assume the shape of a huge cataclysm. It is in direct violation of the quintessential spirit of the rule of law and of the exalted faiths of tolerance and humanity".
The court further held: "the State has a sacrosanct duty to protect its citizens from unruly elements and perpetrators of orchestrated lynching and vigilantism with utmost sincerity and true commitment to address and curb such incidents which must reflect in its actions and schemes". More than four decades back, the Constitution Bench of the Suprme Court in Naraindas Indurkhya (1974), while dealing with the issue relating to selection and prescribing textbooks in the schools of Madhya Pradesh, chronicled India's resolve and commitment on the freedom of expression in the following words: "It is our firm belief, nay, a conviction which constitutes one of the basic values of a free society to which we are wedded under our Constitution, that there must be freedom not only for the thought that we cherish, but also for the thought that we hate."
Incidents of mob lynching is an affront to our democratic tradition and an assault to our much cherished rule of law. Our judiciary has always given the desired protection and impetus to fiercely defend the rights of the citizens. Elected governments have time and again buckled under pressure to fringe groups and, in turn, failed the Constitution. If India has to be respected as a nation, the political leadership must ensure that the rights guaranteed under our Constitution flourish with State protection and State intervention. The level of governance has to improve. Situations like this require the Central Government to play a pro-active role by issuing directives to the States under Article 257 of the Constitution– a power seldom invoked by the Centre. Such stringent measures are called for to send a strong message that acts of lawlessness shall not be tolerated and the governments must ensure that the rule of law is firmly established.
We just completed 72 years of our independence and must ponder: have we really come thus far, or, are we incapable of tolerance? Will we allow forces of bigotry and fanaticism to pose a threat to our democratic structure or will we be able to contain it?