DEMOCRACY AND LIBERTY VIS – A – VIS DISSENT

Liberty doesn‟t mean the mere absence of restraint1. It is maintenance of that atmosphere

in which men have the opportunity to be their best selves. Liberty is therefore a product of

rights2. Liberty and democracy often go hand in hand though they are complimentary to each

other. A democratic state is formed by curtailing certain personal freedoms in pursuit of larger

interests of the society on one hand and promoting individual liberty on the other, by granting

certain rights to its subjects.

That is to say in a democracy, the legal authority or the Government may impose certain

restrictions on the conduct of the individuals in common interest, but these restrictions need not

be considered as invasion of rights and liberty. In the words of Laski, “I shall not feel that my

liberty is endangered when I am refused permission to commit murder3”. Therefore every

freedom comes with a reasonable restriction. But every such restriction is not justified merely

because it is made by the legally competent authority. The Governments may in fact invade

liberty while they claim to be acting in the common interest. The prohibitions issued should be

built upon the wills of those whom they affect4. Therefore if the law made by the Government is

not in accordance with the general will of the people and is against their liberty, they have every

right to dissent.

This paper broadly deals with the question of dissent, its causes, arguments as to how can

dissent be regarded as a right, importance of dissent in democracy, also in Indian context,

limitations of dissent and roles played by powerful entities such as Judiciary and media in

1
Harold J Laski “ Grammar of Politics” chapter IV p.142
2
Harold J Laski “Grammar Of Politics chapter IV p.142
3
Ibid.
4
Ibid.

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upholding dissenting rights. Also, finally with some recommendations to prevent socio-economic

dissents and to make effective use of intellectual political dissents.

What is dissent?

The term “dissent” derives from the Latin verb dissentere; literally, to differ in sentiment.

The Oxford English Dictionary (1987, vol. 1, 506) suggests a large tent of meanings, including

difference of opinion or disagreement, withholding assent, as well as the action of thinking

differently. Dissent involves the exercise of individual and collective rights of expression,

association, assembly, and participation in public affairs. These freedoms encompass rights to

receive and impart information, inspire debate, and influence decision-making about issues of

public concern.

Dissent is one of the basic principles on which a democracy works. Almost all the

countries in the modern world are liberal democratic nations. In spite of legal duties being

imposed on them to respect, protect and fulfill the rights to dissent and protest, these rights are

often misunderstood and increasingly violated considering them anti-national, with dissenters

facing dire consequences including arrest, imprisonment, displacement, disappearance, and

death.

If utterance of the opinion of a person is followed by his prosecution, he shall cease to

express his mind5 and therefore cannot exercise his right of free speech and expression, which

undermines the very concept of liberty and democracy.

Why dissent arises?

5
Harold J Laski “Grammar Of Politics” Chapter IV p.144

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 Citizens dissent in order to express their displeasure with the behavior of the state or to

make demands for change when they feel that access to the political process is limited or their

demands are going unheard.6 Most of the Governments take violent measures to maintain

political and economic stability in the country; but they fail to recognize that dissent is always

proportional to the degree of repression i.e., dissidents respond to Government action with more

dissent as Governments respond to dissent with more repression.7 Dissent in people may arise

due to various reasons such as lack of proper representation for their demands and interests,

identity crisis and feeling of insecurity in the country they live, unjust legislations by the law-

makers, regionalism, communalism, casteism and other domestic economic and political factors.

It is the dissent that led the people towards great world movements and revolutions; the French,

the American being the classic examples. It is the dissent that brought civil rights to the apartheid

in South Africa. It is the very dissent that led all Indians in a single path and freed themselves

from the clutches of the British imperialism.

Dissent as a right:

The modern state is moving towards being a welfare state from police state. The state is

formed with the consent of the individuals and should function for the protection of their lives

and liberties. According to John Locke8, when a state fails to do this, dissent and rebellion is

justified. He also says that only that Government is legitimate which has the consent of the

citizens; and this consent must be given freely. Consent can be called free only when there is an

alternative to it - the person must be able to refuse the consent i.e., he must be able to dissent.9 .

Every individual is free and equal in a state formed to promote their welfare. One cannot be

6
Time and country variation in contentious politics: https/www.jstor.org/stable/20628337
7
Lichbach 1987 ; Moore 1998, 2000
8
John Locke‟s Second Treatise(chapter-19)
9
Routledge –Taylor and Francis group(www.alevelphilosophy.co.uk)

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coerced to give consent because it undermines the liberty and equality of the individual. Consent

without right to dissent is not consent at all.10

In the words of Thomas Hobbes11, since the main purpose of the state, and the reason

we consent to it, is to protect us against violence, our obligation to the state lasts “as long as and

no longer than” its ability to protect us. If it fails to protect us, we have the right to disobey its

laws. He also argues that in the pre-state condition, we had a natural right to do whatever we

need to do to live and this right is weakened with the formation of the state; therefore the state is

obliged to make laws in accordance with the interests of the people. If any law is against this

purpose, we have the right to dissent, disobey and revolt against the state. The law must protect

our right to dissent and express dissent.

As most of the modern states are democratic in nature, they emphasize on protection of

human rights which includes right to dissent. There are international treaties and institutions

which uphold and promote the right to dissent. Article 7 of the United Nations Declaration on

Human Rights Defenders explicitly recognizes that “Everyone has the right, individually and in

association with others, to develop and discuss new human rights ideas and principles and to

advocate their acceptance”12; which in turn impose legal duties on nations to protect dissenters.

Significance of right to dissent in democracy:

It is unabated that democracy is the Government of the people, by the people, and for the

people. Where people can elect their Government and also recall it when it is expedient; and this

process of disobedience and recall starts with dissent.

10
Routledge –Taylor and Francis group(www.alevelphilosophy.co.uk)
11
Thomas Hobbes , Leviathan (chapter-21)
12
Article 7 of the United Nations Declaration of Human Rights Defenders,1998

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 Dissent is the backbone of democracy and therefore it cannot be either repressed or

manipulated by any Government.13

A democratic society permits liberty of speech and expression, freedom to practice one‟s

own religion, which is based on tolerance, and freedom to dissent and criticize. But this liberty is

never real unless the Government can be called to account; and it should always be called to

account whenever it invades rights of the citizens.14 The best form of legitimate dissent in the

present scenario can be observed in Switzerland where no legislation is made without the consent

of the citizens and; the laws made in such a way can be rejected by the people out rightly through

referendums and plebiscites.

Democracy, by its very nature incorporates a variety of opinions and by implication,

accommodates dissent. Dissent is not essentially, a negative concept; it offers alternatives to the

prevailing ideas and institutions. It enables the citizens to claim their rights and participate more

in the democratic process. In a democracy, dissent is an act of faith and is the highest form of

patriotism because only a responsible citizen dissents and raises voice against the unjust laws for

the greater good of the nation. It puts a check on the arbitrary rule of the Government. Dissent is

not just about criticism; it is also about showing new perspectives. This also provides activists,

human rights defenders, jurists, NGOs, corporate actors, and Government authorities with the

tools and knowledge necessary to ensure rights, protect the lives and liberty of dissenters, enable

meaningful participation in public life, and promote the rule of law.

“Locking up dissenters does not reduce dissent- it fosters it”, has been aptly said by Amal

Clooney.

13
Markandey Katju – former Judge Of Supreme Court of India
14
Harold J Laski “Grammar of Politics” Chapter IV p.146

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 That is to say, if the expression of dissent is continuously being suppressed by the

Government, it does not reduce the feeling of dissent rather accumulates it; which may result in a

larger disobedience or violent revolutions. Such revolutions may even divide nations into parts.

Liberation of Bangladesh (erstwhile East Pakistan) from Pakistan is worth mentioning in this

context. Where the Bengali speaking Muslims were deprived of their rights and were subjected

to atrocities by the Pakistani Government thereby fostering dissent in them which in turn became

the Bangladesh liberation struggle. Also, enactment of draconian laws to suppress dissent

increases corruption in the system, let alone dissipating dissent. There is no Government whether

it is autocratic, or democratic, or whichever in form, could hitherto and could ever withstand for

longer period without yielding its head to the popular dissent. This can further be witnessed in

the recent Brexit issue where the Government had to bow down to popular dissent of the people

of England.

Limitations of right to dissent and disobey:

It is definitely true that dissent is the essential feature of any modern state. But on the

other side, it has certain limitations. If every individual dissents and disobeys the laws just

because it is against his interests and personal will, the State would lose its significance finally

leading to utter chaos or anarchy. Whether every citizen is capable of analyzing a law in the view

of the benefit of the society, is another question raised when we talk of right to dissent. There are

certain legitimate forms to express the dissent of the citizens like right to vote and right not to

vote (option of NOTA), conveying through pressure groups and unions etc. Dissent remains

meaningful when these ways are available for influencing the Government.

Dissent is both constructive and destructive. Constructive dissent is healthy, reasonable

and expressed through conscience and knowledge. Destructive dissent on the other hand lacks

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reason, affected with social cascading and is often politically colored. Of late, it has become

common tool for the opposition to provoke destructive dissent among people against the ruling

Government. In a healthier democracy, people must resort to constructive dissent against the

arbitrary and autocratic Governments for the greater good.

Right to dissent in Indian context:

India has the glorious history of questioning the rules, facts and philosophies. Gautama

Buddha, Mahaveera and Basava were dissenters first who later turned out to be great leaders and

philosophers. Also, the mythological texts like Ramayana and Mahabharata are the classic

examples of political and socio-cultural dissents.

Later, under the British rule for almost about 200 years, Indians were deprived of their

basic civil rights. Dissent was brutally suppressed and the dissenters were imprisoned or

deported under sedition charges. For instance, Section 124A of the Indian Penal Code 1860

defines sedition as “Whoever, by words, either spoken or written, or by signs, or by disaffection

towards the Government established by law in India” .This law was made to uphold the rule of

British Government against the revolts of Indians demanding independence. Mahatma Gandhi

called this section as “the prince among the political sections of the Indian Penal Code designed

to suppress the liberty of the citizen.” The great patriots of the time continued their dissent and

disobedience to the draconian laws despite the oppressions and atrocities. The British could no

longer stand against the popular upsurges and finally withdrew from India granting it complete

independence on 15th August 1947.

The biggest challenge before people in the post – independence scenario was drafting an

apt constitution for the whole Indian Union having vast territory and diversity. Democracy was

the very foundation of the newborn nation of India in 1947. The Constitution of India granted

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certain basic rights to the citizens called the Fundamental Rights under Part 3. These rights

include the right to freedom of speech and expression under the Article 19(1)a which says that

“ all the citizens shall have the right to freedom of speech and expression”15 and this freedom

obviously includes the right to dissent.

In the early days of independence, people spoke up for their rights, went on hunger

strikes and openly protested against the Government. Amidst this entire struggle, India became

an example for other nations in the way it remained united as a country and a democracy, despite

its extreme diversity and dissent from one corner to another. But there was a complete change of

scenario in the year 1975 when the then Prime Minister Smt. Indira Gandhi led Government

imposed National Emergency16 .Where political dissent was brutally suppressed, press was

gagged and opponents of the regime were jailed. If the rights of the people are suppressed, it is

not a liberal democracy but a “Democratic Dictatorship” i.e., elected in a democratic way and

governance in an authoritarian or dictatorial way.

The current scenario in India is in a way better but suppressing and penalizing dissidents

is still taking place in some or the other corner of the country. For instance, the Bharat Kisan

Sangh , a farmers union took to non-violent, peaceful protests( kisan kranti padyatra) demanding

minimum income to the aged farmers , implementation of Swaminathan report, also regarding

rising prices of diesel tractors and the like ; on 2nd October 2018 in New Delhi. The Central

Government, instead of inquiring the problems and their demands, opted for using “water

cannons and tear gas” on the mob of thousands of peasants to prevent them from entering the

national capital territory. Such incidents raise the question of importance of dissent in

15
Article 19(1)a , Part 3 of the Constitution Of India, 1949
16
Under Article 352 ( Proclamation Of Emergency) of the Constitution Of India, 1949

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democracy. Critics of the Government argue that there is an “undeclared emergency” prevailing

in India right now.

Role of Judiciary and Constitutional Safeguards:

Indian Judiciary is regarded as the guardian of the Constitution and the rights of the

people granted under it. “Dissent is a safety valve of democracy. If this safety valve is not

allowed to function, the pressure cooker will burst…..”17 This interesting comment was made by

the Hon‟ble Supreme Court of India in connection with the arrests of the human rights activists.

The Judiciary has been playing a vital role in upholding right to dissent by entertaining

PILs. Public Interest Litigation (PIL) is filed under the Right to Constitutional remedies 18 for the

protection of public interests. It has become a powerful vehicle in bringing social revolution by

Constitutional means, also to promote rule of law, accountability and transparency in the

institutions of the State. PIL has enabled civil society to play an active role in promoting human

rights, providing voice to the marginalized sections such as prisoners, destitute, child or bonded

laborers, women and backward classes.

The Judiciary has been promoting and upholding the right to dissent of the people by such

rulings on one hand, but routinely invoking its contempt powers to punish expressions of dissent on

the other. That is to say, Articles 129 and 215 of the Constitution of India empower the Supreme

Court and High Courts respectively to punish people for their contempt. These are granted under the

Constitution for proper and strong administration of Justice. But these powers are being overused by

punishing even those expressions that do not necessarily impede with the actual administration of

Justice; which is creating a rift between the “Right to Freedom of Speech

17
Romila Thapar v. Union of India on 28th of September, 2018
18
Article 32- part III of the Constitution of India,1949

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and Expression19” and Judicial autonomy. Thus, there is a need to reconcile the freedom of

speech and the contempt power of the courts. It can be ensured by considering the cases of Re

S.Mulgaokar v. Unknown20, Hindustan Times v. High Court of Allahabad21, also the

amendment of the contempt of courts act22 where the Judiciary itself has given the guidelines to

envisage harmony between free criticism and the Judiciary.

Role of media and social networking sites in promoting dissent:

“The force of the newspaper is the greatest force in civilization. Newspapers form and

express public opinion. They suggest and control legislation. They declare wars. They punish the

criminals, especially the powerful. They reward with approving publicity the good deeds of

citizens everywhere. The newspapers control the nation because they represent the people.” This

has been very aptly said by William Randolph Hearst, an American based Politician and

businessman in connection with role of media especially the newspapers.

Newspapers have close connection with the masses and have been influencing them

greatly in almost all the popular world movements including Indian Freedom Struggle. Media

stands as the fourth estate and plays the role of watchdog that holds the Government accountable

for all its activities, also functions as the mode of expression of public opinion and dissent. Free

media can be regarded as the cornerstone of democracy. In the modern age, social media is

playing a crucial role in instigating dissent and influencing policies. For instance, the Judiciary

can take suo motu cognizance and adjudicate on that issue which is presented by the media just

as the J and K High Court issued orders to the state government to look into the health sector

19
Article 19(1)a , part III of the Constitution of India , 1949
20
(1978) 3 SCC 339, 1978 3 SCR 162
21
AIR (2011) 13 SCC 155
22
Contempt of courts(Amendment) Act,2006

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based on a newspaper article highlighting malpractices in the medical sector. The maxim- “pen is

mightier than sword” aptly suits this context.

How to deal with dissent?

Suppressing dissent with draconian laws only fosters it to be much violent. Therefore,

dissent should be dealt in a proper way. Following are few suggestions as to how to make use of

intellectual dissent and also to prevent violent dissents.

Dissent and Internal Security Crisis:

Increasing dissent can be a threat to internal security of the nation. There has been

increasing regional discontent among the states of J and K, Punjab, northeast regions, etc. giving

rise to separatist movements, militancy and insurgencies for the grant of autonomy and secession

from the Indian Union. Such regional aspirations should not be suppressed rather consulted and

negotiated within democratic norms and values. The Government should address the issue of

backwardness, growth and regional discrimination. Otherwise, such feelings could create intense

complicated problems. Oppressive measures shall only be taken as the last resort for maintaining

law and order.

Enactment of explicit laws for dissent:

In India, there is no explicit legal framework till now to deal with dissent since it is

implied that right to freedom of speech includes dissent. What we really need is enactment of

suitable laws with suitable mechanism to address the problem of dissent and take remedial

measures.

Spread of Political awareness:

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 Not every individual is capable of analyzing the pros and cons of a particular law.

Education is the key to development. Therefore, people should be politically educated. More the

people participate in politics; more the effective policies can be shaped.

Effective use of technology and media:

For political liberty to be real there is necessity of an honest and straightforward supply

of news. Those who are to decide must have truthful material and their judgment shouldn’t be

thwarted by the presentation of a biased case.23 Unbiased news helps people to analyze and

judge any issue in a right way. This social responsibility should be borne by the media as the

fourth estate.

Effective implementation of the Directive principles of state policy:

Prevention is better than cure. Articles 36 to 51 of the Constitution provided for directive

principles of state policy which when implemented effectively can uproot the causes of socio-

economic dissents.

To sum up, for a democracy to be successful, liberty should be supplemented with

political dissent. In the words of Rabindranath Tagore-“where the mind is without fear and the

head is held high” and where the people can dissent without fear or favor is liberty in its true

sense.

B. SRIVALLI SAILAJA
BA.LLB (5YDC) II YEAR
P.G. COLLEGE OF LAW OU
BASHEERBAGH.
23
Harold J Laski – Grammar of Politics. Chapter IV p.147

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