Patriotism and dissent

THE year 1942 was decisive in the Second World War. Britain’s fate hung in the balance. At home there were murmurs of dissent, which Winston Churchill recorded in Volume 4 of his memoirs on the War entitled The Hinge of Fate. “We had a long succession of misfortunes and defeats—Malaya, Singapore, Burma; Auchinleck’s lost battle in the Desert; Tobruk, unexplained, and, it seemed, inexplicable; the rapid retreat of the Desert army and the loss of all our conquests in Libya and Cyrenaica; four hundred miles of retrogression towards the Egyptian frontier; over fifty thousand of our men casualties or prisoners. We had lost vast masses of artillery, ammunition, vehicles, and stores of all kinds. We were back again at Mersa Matruh, at the old positions of two years before, but this time with Rommel and his Germans triumphant, pressing forward in our captured lorries fed with our oil supplies, in many cases firing our own ammunition. Only a few more marches, one more success, and Mussolini and Rommel would enter Cairo, or its ruins, together.”

The press was critical. So were Members of Parliament. On June 25, a motion was placed upon the paper in the following terms: “That this House, while paying tribute to the heroism and endurance of the Armed Forces of the Crown in circumstances of exceptional difficulty, has no confidence in the central direction of the war.” It stood in the name of Sir John Wardlaw-Milne, an influential member of the Conservative Party. “I said at once that we would give full opportunity for public debate and fixed 1 July for the debate.” The mover offered to defer the motion until the battle in Libya was over. Churchill refused.

The motion of no-confidence was defeated on July 2 by 475 votes to 25, but not before Churchill said: “This long debate has now reached its final stage. What a remarkable example it has been of the unbridled freedom of our Parliamentary institutions in time of war! Everything that could be thought of or raked up has been used to weaken confidence in the government, has been used to prove that Ministers are incompetent and to weaken their confidence in themselves, to make the Army distrust the backing it is getting from the civil power, to make the workmen lose confidence in the weapons they are striving so hard to make, to present the government as a set of nonentities over whom the Prime Minister towers, and then to undermine him in his own heart, and, if possible, before the eyes of the nation. All this poured out by cable and radio to all parts of the world, to the distress of all our friends and to the delight of all our foes! I am in favour of this freedom, which no other country would use, or dare to use, in times of mortal peril such as those through which we are passing.”

Churchill did not brand the critics as traitors. Forty years later, during the Falklands War in 1982, BBC was attacked by Prime Minister Margaret Thatcher and her supporters in the press. The Managing Director of BBC Radio, Richard Francis, told the International Press Institute in Madrid: “Feelings of humanity apart, to report the resilient reaction of the Argentine people to the losses among their armed forces provides an important element of the picture for the British people. The widow of Portsmouth is no different from the widow of Buenos Aires. The BBC needs no lesson in patriotism.” But the Director General Sir Ian Trethowan’s designated successor, Alasdair Milne, remained firm. “We might increase our popularity by appearing jingoistic,” he said in an interview with London Standard on May 12, “but then no one would believe what we were saying. I do not intend to trade our reputation to please such critics” ( GOTCHA! by Robert Harris, p. 83)—a lesson for our jingoistic TV anchors and their guests.

Contrast this with Pamela Constable’s admirable critique of the Indian press during the Kargil War ( Guns and Yellow Roses,Harper Collins, p. 40). This attitude is particularly noticeable on sensitive issues like Kashmir, the boundary dispute with China and the like. Statutory weapons were devised to stifle such dissents. One was the so-called Criminal Law (Amendment) Act to penalise anyone who published a map that showed the boundary with China different from that on official maps. This is patently unconstitutional. A map, like a speech, expresses a view and it need not follow the official line. Official maps published in 1948 and in 1950, after the Constitution came into force, showed the boundary from the trijunction of India, Afghanistan and China to the trijunction of India, Nepal and China as “undefined”. That was an explicit assertion. On July 31, 1954, Nehru decided to alter it unilaterally—which the British had refused to do—to show a “firm” boundary that was not negotiable. Is the citizen bound to perform a somersault with the government of the day?

The Constitution and Kashmir

On Kashmir, even the Constitution recognises it as disputed territory. Article 253 empowers Parliament to legislate even on matters in the State List to implement any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. The Constitution (Application to Jammu and Kashmir) Order, 1954, applies Article 253 to Kashmir with one overriding proviso. It reads thus: “Provided that after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of the State of Jammu and Kashmir shall be made by the Government of India without the consent of the Government of that State.” What else does it imply but that a “decision” regarding the “disposition” of Kashmir was yet to be made by international “agreement” or at an “international conference”? There is no such provision regarding any other State. As late as the end of 1953, India and Pakistan were negotiating a plebiscite in Kashmir.

The Order of 1954 was made by the President on May 14, 1954. The very next day, on May 15, 1954, Nehru said: “India still stands by her international commitments on the Kashmir issue and will implement them at the appropriate time.”

When Pakistan objected to the United Nations Commission on India and Pakistan (UNCIP), Girija Shankar Bajpai, then Secretary General of the Ministry of External Affairs, wrote to the UNCIP on November 21, 1949, that it did not preclude plebiscite. V.K. Krishna Menon told the U.N. Security Council on February 8, 1957: “The accession [of Kashmir], it is true, can be terminated by our sovereign will. It is possible for any sovereign state to cede territory.” Why, then, can the citizen not urge it, if she or he felt that the state should do, indeed, exercise its “sovereign will” by cession?

Krishna Menon continued more explicitly: “If as a result of a plebiscite, if ever it did come, the people decided that they did not want to stay with India, then our duty at that time would be to adopt those constitutional procedures which would enable us to separate that territory.” That procedure is laid down in Clause (3) of Article 370—a Presidential Order to “declare that this Article shall cease to be operative”.

Past pledges

What of India’s past pledges? At a rally in Calcutta on New Year’s Day 1952, Nehru warned: “If tomorrow Sheikh Abdullah wanted Kashmir to join Pakistan, neither I nor all the forces of India would be able to stop it because if the leader decides, it will happen. …Just imagine what would have happened in Kashmir if the Jan Sangh or any other communal party had been at the helm of affairs. The people of Kashmir say that they are fed up with this communalism. Why should they live in a country where the Jan Sangh and the Rashtriya Swayamsewak Sangh are constantly beleaguering them? They will go elsewhere and they will not stay with us” ( SelectedWorks ofJawaharlalNehru , Volume 17, pp. 77-78).

Nehru said in October 1947: “Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored and leave the decision about the future of the State to the people of the State is not merely a pledge to your government but also to the people of Kashmir and to the world .”

Deputy Prime Minister Vallabhbhai Patel said at a public meeting in Bombay on October 30, 1948: “Some people consider that a Muslim majority area must necessarily belong to Pakistan. They wonder why we are in Kashmir. The answer is plain and simple. We are in Kashmir because the people of Kashmir want us to be there. The moment we realise that the people of Kashmir do not want us to be there, we shall not be there even for a minute. … We are asked why we are in Kashmir. The reply is clear. If the Muslims in Kashmir tell us to go away, we will get out. We shall not let the Kashmiris down” ( The Hindustan Times , October 31, 1948).

Nehru said at a public meeting in Srinagar on June 4, 1951: “I want to repeat that the Government of India will stand by that pledge, whatever happens. That pledge itself stated that it is for the people of Kashmir to decide their fate without external interference. That assurance also remains and will continue. Indian troops came to Kashmir in the hour of great peril at the invitation of the constitutional authorities of the state as well as representatives of the people. They will not remain here a single day if they are unwanted for the purpose for which they came or if the people of Kashmir feel that they do not desire them any longer here” ( The Hindu, June 5, 1951).

Can the cries of azadi be suppressed by recourse to the instrument the Unlawful Activities (Prevention) Act, 1967? Section 1 (1) Clause (o) defines “unlawful activity” to mean any action “(i) which is intended, or supports any claim to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India”; akin to it Sub-clause (o) says: “Secession of a part of the territory of India from the Union includes the assertion of any claim to determine whether such part will remain a part of the territory of India”—determine by plebiscite.

Parliamentary committee

Its provision was explained by perhaps the only liberal Attorney General India has had, C.K. Daphtary, in his evidence to the Joint Committee of Parliament. It comprised MPs such as Madhu Limaye, A.B. Vajpayee, Y.B. Chavan, Chandra Shekhar and P. Ramamurthi (Communist Party of India (Marxist)) whose questions were the most searching and relevant of all because he was free from nationalist chauvinism. Unfortunately it was headed by Dr Sushila Nayar, an arch Establishment figure. Here are some revealing extracts from its proceedings, appended to its report.

Daphtary made plain his distaste for the Bill when he appeared before the Committee on October 16, 1967. He said: “These are drastic powers… You will notice that the words are ‘whether by committing an act or by words, either spoken or written’. So, it is impossible that anything honestly spoken as an opinion will come within the mischief of this Section, because ‘in relation to an individual’ it says ‘an act or by words, either spoken or written … which is intended, or supports any claim to bring about on any ground whatsoever the cession of a part of the territory’. It is conceivable that someone may, as a matter of suggestion, for peace, quite honestly say ‘well, I think it would be better if we give up a part of our territory’. Now the words ‘on any ground whatsoever’ appear more than once in the Act and the other words ‘an act or by words, either spoken or written, or by signs or by visible representation or otherwise’ which clearly means words which incite to something done actively to bring about a particular result. So, even what is called a theoretical discussion or an idealistic discussion would not come within the scope of this clause. That is all that strikes me at the moment. …”

“C.K.Daphtary: Whoever has the authority, he will first ask himself this question, namely, whether the opinion is expressed by a person who is responsible and, secondly, whether he merely expresses an opinion or whether he incites people to act in order to bring about the fulfilment of this provision. That must be the ultimate test.

A.M. Tariq : What is your opinion as a private citizen?

C.K. Daphtary : Am I supposed to express my opinion as a citizen also Madam Chairman?

Madam Chairman : I do not think so. You are here as the Attorney-General. You can only give your opinion as the Attorney-General.” This was most unfortunate.

“ B. Shankaranand : You say, this Bill is perfectly constitutional…

C.K. Daphtary : Not ‘perfectly’ constitutional; I say, it is constitutional.

P. Ramamurthi : You will see that Sub-clause (3) of Section 13 says: “Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the government of any other country or to any negotiations therefore carried on by any person authorised in this behalf by the Government of India.”

“Therefore, the Government of India is authorised to negotiate with any other country even for the purpose of cession of a part of our country or territory purely from a political point of view. Now, you said an expression of opinion is not barred. Supposing a political party thinks that the policies that the Government of India is pursuing in a certain border dispute is not correct and, therefore, it thinks that there must be a political settlement which may be ‘Give and Take’, while an expression of opinion by an individual is considered to be correct, but a political party, in the interests of the country and genuinely thinking it to be in the interests of the country and a power which the government is authorised to exercise, in order to make the government do this thing, it tries to mobilise the people, it tries to canvass support for that public opinion, will that be penalised under this Act?

C.K. Daphtary : As I understand it, if you express an opinion collectively or singly, provided it is an opinion.

P. Ramamurthi : It is a question of acting when you say ‘it incites other people’. Therefore, it asks Government of India to act in this particular manner. Therefore, it is wrong to ask thegovernment to do a particular thing which thegovernment is entitled to do under this Act . This Act provides that Government of India can enter into negotiations etc. and act in a particular manner. How do you say it is reasonable? Section 13 is very clear that the government can act. I ask the government to act—after all democracy means popular opinion—and the popular opinion asks the government to act in a particular way, how is it wrong? For me to mobilise public opinion to go in a particular way is not considered unlawful.

C.K. Daphtary : The wording used is: ‘which is intended, or supports any claim, to bring about on any ground whatsoever the cession’ and the rest.

P. Ramamurthi : Political parties in this country function not only among its members; in a democracy the political parties go to the people, ask their opinion, give their opinion and ask the people to express themselves in favour of that. That means something—going, inciting, people to act in a particular way. Therefore, if we incite the people in a way as provided for under Section 13, then you say ‘You can express an opinion but you cannot ask the people to do that. Then it becomes an offence.’ How is it a reasonable restriction? I can understand your saying ‘You cannot question the territorial integrity’. Correct, I do not question. But, in a particular set of circumstances, I may consider it to be in the interests of my country that a particular dispute must be resolved in a particular way and that is provided for under this Bill itself. Under this Bill itself the government may do that and if I ask the government to act in that particular way which is provided for and which is not unlawful and if I mobilise the people of this country for that purpose, then you will say ‘You are inciting people. It is not merely an expression of opinion. Therefore, you are liable to be punished under this law.’ How is it a reasonable restriction when I do something? If the government is prohibited from ceding anything, then I can understand your saying ‘You cannot do that’, but the government is empowered with those powers.

C.K. Daphtary : Why do you put into the Constitution ‘integrity and sovereignty of India’? It is to preserve it.

P. Ramamurthi : But the government in certain circumstances is authorised to do certain things. Therefore, in a democracy people can certainly ask the government to do a thing in a particular way. How is it unlawful?

C.K. Daphtary : I agree. It did not strike me there .

P. Ramamurthi : Yes, he agrees.…

Babubhai M. Chinai : What would be your reaction if a proviso is added to Clause 2(g) that any suggestion for the settlement of any border either by exchange of territories or otherwise made in good faith shall not be deemed to be an unlawful activity.

C.K. Daphtary : You mean suggestion made to government. Having regard to what an hon’ble member said here, a single or collective appeal to government itself to do a particular thing might be perhaps an exception.”

Section 13(3) says: “Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the government of any other country or to any negotiations therefore carried on by any person authorised in this behalf by the Government of India.”

That is when P. Ramamurthi cornered him. In a powerful dissent dated November 18, 1967, he quoted the exchange and added his comments.

“At last, the Attorney General had to agree that such restrictions are not reasonable. Suppose at a general election, a political party decides to raise the issue of a political settlement of our border disputes as a major issue and defeat the ruling party on that issue. It is perfectly a lawful and democratic procedure. The Bill would prevent it. The unreasonableness of the restrictions, thus become patent. The Bill, therefore, is constitutionally improper. Politically it is inexpedient and will not serve the purpose of fighting centrifugal forces. On the other hand it will become a weapon in the hands of the ruling party to unscrupulously fight its opponents. I, therefore, urge the dropping of the Bill.” These words apply also to Kashmir.

Failed Act

The Act has failed to accomplish its objectives. Witness Nagaland and Kashmir. The Bill’s best critique is in the words of the late Lal Bahadur Shastri. In a speech at Vallabh Vidyanagar, Gujarat, on October 31, 1964, he said, to quote a PTI report: “That in a democratic country like India problems such as those in Kashmir, Nagaland and Madras should generally be tackled on the political level rather than by utilising the power of the state. He said some people in Kashmir and other parts of the country were advocating that the government should take action against those who talked of independence for Kashmir. But in a democracy the government did not rule merely by force. The real sanction behind it was the support it got from the public.”

The secessionists in Scotland and Quebec are neither muzzled nor called traitors.