Yogi Adityanath is clearly unaware of the law. Unfortunately, so too are many other BJP leaders.(File) Yogi Adityanath is clearly unaware of the law. Unfortunately, so too are many other BJP leaders.(File)

Normally I don’t take Yogi Adityanath seriously. He’s certainly not the fount of political wisdom. Worse, he’s made a habit of saying risible, though foolish things. But what he asserted at a BJP rally in support of the Citizenship Amendment Act in Kanpur last week deserves to be countered. Unlike his earlier follies, it simply cannot go unchallenged.

First, he said that protesters who shout azadi slogans would be charged with sedition. “In the name of dharna and demonstration, if you raise slogans of azadi that were once raised in Kashmir, it will come under sedition and the government will take the harshest action.” This statement is wrong on several counts.

Let’s start with the Constitution and the law. Article 19 (1) of the Constitution states: “All citizens shall have the right to freedom of speech and expression.” Article 19 (2) states: “Nothing (can)… prevent the state from making any law… (to) impose reasonable restrictions… in the interests of the sovereignty and integrity of India.” Two things follow. Article 19 (2) does permit a restriction on freedom of speech on grounds of sovereignty, but it’s an enabling provision. It is not the law itself. A law along these lines needs to be promulgated by Parliament to put Article 19 (2) into effect.

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Now, does such a law exist? Until 1962, the penal code provision for sedition (Section 124A) was such a law. However, in the Kedar Nath Singh judgment, the Supreme Court read it down. It now only applies if there is an actual incitement to violence. In 1995, in the Balwant Singh case, when the Supreme Court ruled that “Khalistan Zindabad” is not seditious, it upheld the 1962 ruling. More recently, in September 2016, the Supreme Court explicitly reaffirmed this judgment: “We are of the considered opinion that the authorities while dealing with offences under Section 124A of the Indian Penal Code shall be guided by the principles laid down by the constitution bench in Kedar Nath Singh versus State of Bihar.”

So the situation that prevails today is simple. The Constitution permits the government to make a law to restrict freedom of speech in the interest of the sovereignty and integrity of India. But the law that does that only applies if there is incitement to violence. If the government wishes to criminalise peaceful non-violent calls for azadi, it needs to pass a specific law to do so. Article 19 (2) is not sufficient.

This means that every Indian citizen has the right to peacefully and non-violently call for azadi. It also suggests that Sharjeel Imam’s call to peacefully block roads connecting Assam to the rest of the country is not sedition. This sort of protest has happened earlier, most notably in Manipur. And Imam was not advocating or inciting violence.

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Yogi Adityanath is clearly unaware of the law. Unfortunately, so too are many other BJP leaders. In fact, almost each time the police moves charges of sedition, it’s almost certain they are equally ignorant. What the police claims is sedition is rarely, if ever, the case.

Now, should the BJP pass such a law? I have two reasons for saying no. Perhaps, in the immediate years after independence, India was a fragile nation whose future was uncertain and so even peaceful calls advocating for separation or division were a threat that could not be permitted. That’s not the case any longer. Today we’re resilient enough to withstand the rhetoric of college students. Indeed, their liberty to say what they want should be proof of our strength.

Second, as far back as 1962, in his maiden Rajya Sabha speech, C N Annadurai said: “Dravidians demand the right of self-determination… we want a separate country for southern India.” If his words were laughed off rather than seen as a threat 58 years ago, then surely similar calls should be treated similarly today.

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Now, I don’t mean to suggest that calls for azadi are not offensive and distasteful. But, free speech includes the right to offend. A law to protect against that would diminish us. It would also suggest that instead of maturing as a democracy we’re regressing. We would end up shaming ourselves without any meaningful gain.

The second foolish claim made by Adityanath was, arguably, worse. It was a direct attack on Muslim women who have been protesting. He claimed that they were forced by their husbands and brothers because Muslim men are scared to protest themselves.

With these words, Adityanath made several things clear. He doesn’t believe that Muslim women have a mind of their own and a right to act of their own volition. He doesn’t view them as individuals. He sees them as possessions of their brothers, husbands and fathers. They will only do what they are told to do. He refuses to accept that they actually want to do it themselves. But, perhaps, this is not surprising from a man who believes “women do not deserve independence”.

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He also undermines the BJP’s vaunted claim that with last year’s Triple Talaq Act, the party had empowered Muslim women. This was the great boast during the 2019 election and the reason why many BJP leaders believe that large numbers of Muslim women voted for them. With one thoughtless rhetorical swipe, Adityanath has shattered that presumption. Indeed, if some Muslim women did praise the Triple Talaq Act, they are even more likely to be offended by Adityanath’s male chauvinism.

Finally, Adityanath has also revealed what he thinks of Muslim men. He doesn’t believe they are fearless or resilient. Instead, they hide behind their women’s skirts. So whilst the government sends ministers to the Valley to reach out to Kashmiris, Adityanath, single-handedly, is taunting and ridiculing Muslims in Uttar Pradesh. Yet Amit Shah and Narendra Modi are silent. I would have thought that they might want to distance themselves from his intemperate remarks. Their failure to do so raises the question: Has he revealed the BJP’s real feelings about Muslims?

This article first appeared in the print edition on January 29, 2020 under the title ‘Law takes whose course.’ The writer is a senior journalist based in Delhi

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