Using Devanagari Numerals on New Currency Dishonours a Historic Compromise

The Modi government has reneged on a significant compromise on national language made during the constituent assembly debates – the Munshi-Ayyangar formula.

The Modi government has reneged on a significant compromise on national language made during the constituent assembly debates – the Munshi-Ayyangar formula.

The legality of using Devanagari numerals in new currency notes has come into question. Credit: PTI

The legality of using Devanagari numerals in new currency notes has come into question. Credit: PTI

A fascinating new challenge has been brought against the newly printed Rs 2000 and Rs 500 notes in the Madras high court. A recent PIL brings into question the fact that the new notes have international numerals and Devanagari numerals printed on them, and argues that they should hence be declared “invalid” since the Indian constitution does not permit the use of Devanagari numerals on currency notes.

Writing for The Wire, Kavin Aadithiyan and Sahil Mathur have already pointed out that the legality of the move is at best doubtful. They note that according to the Presidential Order of 1960, the Official Languages Act of 1963 and Article 343 of the constitution itself, there appears to be no legal basis for the sudden introduction of the numerals. But it remains to be seen whether the court will consider the historical context and complexity involved in the matter.

While this may seem like a trivial change, the decision to introduce Devanagari numerals carries with it a huge amount of baggage. By including these new numerals, the Modi government has reneged on one of the most important compromises made during the constituent assembly debates – the Munshi-Ayyangar formula.

The Munshi-Ayyangar formula

The Munshi-Ayyangar formula – named after constituent assembly members K.M. Munshi and N. Gopalaswamy Ayyangar – was the compromise that was reached on the question of a national language.

These debates have often been recognised as the most divisive among all the constituent assembly debates. In India After Gandhi, Ramchandra Guha notes that there were voices in the assembly that would not recognise anyone as Indian if they did not understand Hindustani – a language similar to Hindi. There were also several people from the south who were worried that the rise of ‘Hindi imperialism’ would engulf the states that did not speak Hindi.

According to the formula, the assembly agreed that the official language of the union would be Hindi in the Devanagari script and the form of numerals to be used shall be the international form of Indian numerals. This compromise meant that India would have no national language and that the non-Hindi speaking states could maintain the international numerals.

The debates on numerals

From a modern perspective, it is difficult to understand just how controversial the introduction of Devanagari numerals was during the framing of the constitution. The introduction of Hindi in the Devanagari script was seen by non-Hindi speakers as a difficult pill to swallow. To them, it meant that they would be compelled to learn a new language that is alien to their part of the country. The retention of international numerals became a token of good faith on the part of the Hindi speakers in the country, something to reassure the non-Hindi speakers that they would not entirely be sacrificing their native languages for the sake of the dominant Hindi speakers.

Two days in 1949, September 13 and 14, were set aside for deciding the question of a national language and numerals. On these days, three speakers stood out, each representing a different but important set of stakeholders. The first was Jawaharlal Nehru – the progressive – who argued that there was a need for retaining the international numerals so that India could keep abreast in matters of science and technology. For him, the international numerals were vital so that the country could continue to progress and not fall into the trap of romanticising the past.

The next stakeholder was Maulana Abul Kalam Azad. He attempted to ameliorate the situation by linking the use of international numerals to Arabic and Indian history. He noted that the numerals travelled to the west through the Caliphs who themselves had borrowed the numerals from the Vedic scholars of India.  His intent was clear. He wanted to position the use of international numerals in a manner that would be acceptable to the religious Hindu majority and to the Muslim minority.

The final stakeholder in the debates on numerals was the president of the assembly, Rajendra Prasad. He spoke after the resolution was passed as it was important for him to remain neutral. His address is still vital as it summed up the spirit of the debate. Prasad focussed on the importance of the compromise and how historic it was. He brought this up in the form of a metaphor: 

“We want some friends to invite us. They invite us. They say, “You can come and stay in our house. We welcome you for that purpose. But when you come to our house, please wear the English type of shoes and not the Indian chappal which you wear in your own house.” I should be not very wise to reject the invitation, simply because I do not want to give up my chappals. I would accept the English type of shoes and accept the invitation, and it is in this spirit of give and take that national problems can be solved.”

This metaphor highlighted the importance of constitutional and national compromise in nation building. It also highlighted just how important the non-Hindi speakers considered the retention of international numerals.

The new notes

These debates throw the historic nature of the inclusion of Devanagari numerals into sharp relief. The challenge in the Madras high court is no longer a waste of time brought about by those who dislike the current government. Nor is it the desperate recourse of sympathisers of kala dhan. It is an appeal to maintain the pact that the Hindi speaking north made with south.

Equally, the debate underlines the value of discussion and consultation in a diverse society. Unsettling these longstanding compromises may unleash unforeseeable circumstances with potentially disastrous consequences.

Apoorva Sharma is an Associate Editor for the Constitutional and Civic Citizenship Project at the Centre for Law and Policy Research. Under this project, he is involved in curating, coding and tagging the constituent assembly debates and making the database available at cadindia.clpr.org.in.

Flashback: What the Constituent Assembly Debates Tell us About AFSPA’s Problems

The draconian law is almost as old as independent India and the criticisms being made of it today were anticipated by many of the country’s first legislators.

The draconian law is almost as old as independent India and the criticisms being made of it today were anticipated by many of the country’s first legislators.

The first day of the Constituent Assembly of India. Credit: Wikimedia Commons

The first day of the Constituent Assembly of India. Credit: Wikimedia Commons

At a time when demands are being raised from across the country to repeal the Armed Forces (Special Powers) Act (AFSPA), The Wire takes a look at how the issue was first debated in the Constituent Assembly of India and the circumstances that led to the controversial law’s adoption.

The information has been obtained from parliament’s library by Venkatesh Nayak, coordinator of the Access to Information Programme of the Commonwealth Human Rights Initiative. Nayak said: “The purpose of placing these debates in the public domain is to enable people to debate the issue in an informed manner with knowledge of the concerns of lawmakers in the past.”


The Supreme Court in July dealt a potentially heavy blow to the immunity enjoyed by security personnel under AFSPA, when it held that “there is no concept of absolute immunity from trial by a criminal court” if a soldier or army officer has committed an offence. It also held that there was a need to enquire into every death caused by the armed forces in a disturbed area, irrespective of whether the victim is a dreaded criminal, or a militant, or a terrorist, or an insurgent.

More recently on September 7, the National Human Rights Commission also expressed its exasperation before the Supreme Court over the armed forces taking protection under the Act. In his submission, senior advocate and NHRC counsel Gopal Subramanium noted how the security forces resort to AFSPA when faced with a human rights complaint. “In Manipur, it took three years to get information regarding a case of alleged human rights violation. The NHRC is a responsible fact-finding body. No government can say it is not accountable for the violation of human rights,” Subramanium had stated.

Tracing the legislative history of the law

From parliament’s archives, Nayak obtained a scanned copy of the debate on AFSPA, 1948, which was held in the constituent assembly in 1947. He also obtained the Disturbed Areas AFSP Ordinances of Bengal, East Punjab and Delhi and the North-West Frontier Province (NWFP). Of these the ordinances, Bengal and NWFP had not empowered the armed forces to use force to the extent of causing death. That power was granted only in the East Punjab and Delhi ordinances. All these ordinances were replaced by the AFSPA Act of 1948, which empowered the armed forces to shoot and kill if necessary. Later on, the AFSPA of 1958 was enacted.

The Armed Forces (Special Powers) Bill was introduced in first session of the constituent assembly of India by the first defence minister, Sardar Baldev Singh. It was debated in the house in December 1947.

Objectives and reasons

Singh’s reasons for introducing the Bill were that “in the beginning of this year when communal riots broke out in Punjab on an unprecedented scale, the administration of that part of the country completely broke down. The police there failed to perform its duties and in some cases they even refused to work. Another factor which must be borne in mind is that in that part of the country the police was 90% of one community. The communal riots took a very ugly shape and the provincial government requested the government for military help. We sent a large number of troops, but the presence of troops there did not improve the situation much. It was not on account of the inadequacy of the troops, but because the troops were spread over the whole of that part of the country and under the laws then prevailing they were not in a position to take any action.”

He noted that, “representations were made to the government of India by several people, by the Section 98 administration of the Punjab province and also by public men, that additional powers should be given to the armed forces”. He told the house: “In deference to the wishes of the local administration and other bodies, an ordinance was promulgated which is before the house. This ordinance, sir, expires early in January or sometime in the middle of February and if we do not pass this Bill, the ordinance will lapse and the armed forces will find themselves in a difficult position. It is for this reasons that this Bill is placed before the house so that we do not have to resort to an ordinance again.”

“The provisions of the Bill,” Singh admitted, “may look drastic, but I wish to point out that up till now, they have worked without any hardship to anybody. The powers cannot be used unilaterally by the armed forces. Firstly, the provincial government has to declare an area as a disturbed area; and secondly, the provisions of the Bill are only for a year. If at the end of this year, we consider that it is necessary to extend the provisions of the Bill for another period of one year, only then will the Bill be so extended.”

The need for covering more areas

On how and why the Bill sought to cover more areas, Singh said:

“Up to now this ordinance was in force in the Punjab and later on, when the communal situation in others parts of the country deteriorated the governments of UP, Bengal and Assam asked the government of India to extend the provisions of this ordinance to those parts of the country also.

“So, at present the position is that this ordinance is in force in four provinces of India. Under this Bill we will be taking power which will apply to the whole of India, but it will be open to the provincial governments to enforce this Bill in any way they like. They have complete power, first to declare an area as a disturbed area and only then will the provisions of this Bill come into operation.

“That in short is the history of this Bill and the provisions that are contained in the Bill seem to be rather drastic; but I assure the house that after the experience we have up till now, we are convinced that the powers have not been unnecessarily used and there have been no complaints from any of the provinces. I hope the house will be convinced, if amendments are moved, that these powers will be used in the right way and there will be no complaint about it.”

AFSPA was originally mooted for one year only

Ironically, AFSPA is almost as old as independent India. It has been repeatedly modified and extended though it was originally meant to be in force for only a year. As Singh had told the house, “We have no intention at all to extend the period beyond one year. Some honourable members may have a feeling that perhaps we will go on extending it beyond one year or even later. I can assure the house that we have absolutely no such desire and it will be extended only if the communal situation does not improve.” 

Maharaja Hari Singh of Kashmir, who signed the Instrument of Accession that made Kashmir a part of India. Kashmir has been under AFSPA for several years. Credit: Wikimedia Commons.

Maharaja Hari Singh of Kashmir, who signed the Instrument of Accession that made Kashmir a part of India. Kashmir has been under AFSPA for several years. Credit: Wikimedia Commons.

Strong opposition

During the discussion of the Bill, Pandit Thakurdas Bhargava of East Punjab had pointed out that “either the civil authorities can function or they cannot function. If they cannot function, it is a case of giving over the command to the military authorities”.

He also spoke about a contingency: “Suppose the magistrate or civil authorities call the aid of the military and the question arises about quelling the disturbance or the riot, would the provision of this Act apply or the provisions of the Criminal Procedure Code?”

Providing the answer to the same, he said, “According to the provisions of this Act, irrespective of whether the magistrate is there or not, the military have the last say and they can shoot and kill any one they please.”

‘Misconceived and mischievous’

Bhargava had also made a strong case against the law, saying, “now let us see to what cases and contingencies this Bill shall apply and I wish to read to you the first section which shall show how misconceived and mischievous this Bill is.”

He went on to add that the Bill provides that:

Any commissioned officer, warrant officer or non-commissioned officer of His Majesty’s military or air forces may, in any area in respect to which a proclamation under sub-section (1) of section 15 of the Police Act, 1861, is for the time being in force, which is for the time being by any form of words declared the provincial government under any other law to be a disturbed or dangerous area – if in his opinion it is necessary to do so for the maintenance of public order, after giving such warning, if any, as he may consider necessary, fire upon or otherwise use force, even to the causing of death against any person who is acting in contravention of any law or order for the time being in force in the said area, prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons.

On a reading of this, Bhargava said “the first point is that any commissioner officer need not give any warning at all, because the words are “after giving such warning, if any…”. According to the provisions of the Criminal Procedure Code “the magistrate has to give warning, the police officer has to give warning; every person who disperses an unlawful assembly has to give a warning.”

Pandit Thakur Das Bhargava. Credit: policypulse.com

Pandit Thakur Das Bhargava. Credit: policypulse.com

But according to these provisions, he cautioned, “it will be the right of this commissioned officer to shoot or kill people in any manner he likes.”

Bhargava had also argued that the definition of what constituted an “assembly” of people was also vague. “In Gurgaon sometime back, there was a riot and it was a fairly serious riot. After three or four days, I went to Gurgaon because I received a wire from a lawyer friend of mine. The authorities had taken upon themselves to arrest hundreds of persons. Many of them were lawyers. I called some lawyers to know from them what the matter was but they could not come to my place because they said that five persons could not assemble. …….. if such an ordinance is made, I think a commissioned officer will be within his right to go into a person’s house and shoot the people there.”

The member from East Punjab said that the words “who is acting in contravention of any law” were also too vague and “any innocent person can come within the clutches of law”. He explained that under the provisions, if “one or two persons are engaged in the act of looting – they cannot be fired at …. but if they are acting in such a manner that they make an assembly of five or more persons, however lawful, then they can be fired at.” 

Bhargava had further stated that “if a person was committing murder, arson or loot and then he got fired at, I could understand it. But to define the occasion in such a vague manner that any innocent person could be fired at, by the sweet will of a commissioned officer, is too much.”

He also referred to the anomalies in clause (b), which spoke about the powers to “arrest without warrant any person who has committed a cognisable offence, or against whom a reasonable suspicion exists that he has committed, or is about to commit a cognisable offence”, saying the armed forces of a country usually have the same character as the people of that country.

“If the police are bad, then I cannot say that our troops will be found to possess much higher character. According to the admission of the honourable mover, the police is corrupt and police rule has failed and therefore the military is called in. What happened during the disturbances in Punjab? When the Muslim police failed, the Baluchis came in and did things which the police could not do. So far as these powers are concerned I am of the opinion that if these powers can be abused by the police, they can be abused much more by the armed forces.”

Observing that clause (b) covered a person “about to commit a cognisable offence”, he said “according to the provisions of the Criminal Procedure Code, no police office is given powers to arrest a person who is about to commit a cognisable offence”.

“It is a very dangerous power that a person should be authorised to arrest a man who is about to commit a cognisable offence …….. it is too great and arbitrary a power,” he said.

Bhargava had also argued that “there is no such safeguard here that the military should do as little harm as possible. On the contrary power is given to kill or behave in any manner they please”.

In this Bill, he said, the officer concerned has been vested with a very large discretion. “If he thinks necessary to do a particular act for the maintenance of public order, he can do so ….. no prosecution, suit or other legal proceeding can be brought against him”.

Bhargava, who had seen the riots in what is now Pakistan, had also warned that this Bill will not go a long way in providing a solution to the difficulties. “On the contrary, as soon as the emergency is over, there will be such a reign of terror, as happened in Punjab, which will be more terrible than the emergency itself when the killings were going on.”

Sounding a note of caution, he also observed that this measure applies to the whole of India. “Therefore it is all the greater reason that we should be circumspect and not inflict any great hardship on the people whom you are not taking into consideration. It is a very drastic measure ….. It really affects the rights of the public in general. It gives more power to the army than we are accustomed to.”

Sikh refugees escaping communal violence in 1947. Credit: Wikimedia Commons

Sikh refugees escaping communal violence in 1947. Credit: Wikimedia Commons

‘Essential for provisional governments’

Activist, writer, lawyer and educationist, K.M. Munshi from Gujarat, however, defended the Bill saying it was “essential that the provincial governments should be given the power to declare an area disturbed in which they can secure the assistance of the military”.

K.M. Munshi. Credit: Wikimedia Commons

K.M. Munshi. Credit: Wikimedia Commons

Asked by Shibban Lal Saksena what the guarantee was, that the law will not be used against labour movements, he replied: “… if a labour struggle assumes such proportions that it threatens the existence of public order or the state, not only this Act but the whole force of India must be used to suppress it. I refuse to be frightened by words ……  We know what labour struggles mean in some hands: should governments in power be made so weak and so frightened in the name of civil liberties that it may not take any drastic action and totter?”

As for the fears expressed vis-à-vis the army, he said, “I claim for them that when they will discharge their duty, they will do it not as an instrument of a foreign power to keep this country in subjugation, but as patriotic citizens whose sole interest is to see that law and order is maintained.”

In his response to the debate, the defence minister said “now short of martial law, this is the only alternative that we can resort to.”

Agreeing with the concerns expressed, Singh said: “Hardly three months ago we got our independence after 150 years of slavery. And if we cannot manage the affairs of this country successfully we will stand condemned in the eyes of the world. It is therefore in order to enhance the prestige of the government and to save innocent lives that it is necessary for us to have these powers.”

The law was passed in the form the government wanted, and despite the promise of a one-year time limit, AFSPA, in a virtually similar avatar remains on the statute books to this very day.

‘Drastic and extraordinary powers’

One member who opposed the measure at the time, H.V. Kamath, said that even though the measure was intended to be temporary, “if during that period a certain section of our forces – be they the police or the army – is going to be invested with very drastic and extraordinary powers, then it is a matter for thought.”

Anticipating the future impact of the law as the years went by, Kamath said:

“Power is all right so long as it is used for the benefit and the good of the people. But are our troops so perfect that they may not abuse such powers conferred upon them?” he had asked.

He also referred to the Azad Hind Fauj of Netaji Subhas Chandra Bose in this context and said, “in addition to ordinary methods of military training, they were given what was called spiritual training. That was why that army did such wonderful things.”

H.V. Kamath. Credit: punjabimanch.com

H.V. Kamath. Credit: punjabimanch.com

When coaxed by Pandit Balkrishna Sharma to speak about “internal aggression”, Kamath replied, “in the Central Provinces and Berar whence I come, some areas were declared as disturbed or dangerous in the very flimsiest pretext. After all, you all know that the CP and Berar have been very free from communal disturbances.”

Kamath also said that AFSPA went against the spirit of fundamental rights. “I remember, sir, if my memory does not betray me, that the fundamental rights – at least some of which were adopted by the constituent assembly only a few months ago – did regard the privacy of a home as more or less sacrosanct; but here, sir, is a measure which confers upon the armed forces this power to enter and search without warrant any premises, make any arrests, recover any person, any property reasonably supposed to be stolen property, or any arms kept in the premises.”

Kamath also said that police should not get the feeling that they are not trusted. He also said that the Bill was not being legislated in war time, but when “there is peace in India”. Questioning where the safeguards were for people assembling peacefully and the protection owed to them from an army officer, “who may have been annoyed by certain civilian members”, he said, “we are clothing the army with such powers that we must see the darkest side possible of this picture.”

Goon’s Justice, Mob’s Democracy

We have just witnessed a week of shame for ‘Mother India’, when democracy was reduced to rubble and the rule of law was left gasping for breath.

We have just witnessed a week of shame for “Mother India”, when democracy was reduced to rubble and the rule of law was left gasping for breath

Lawyers beat an effigy of Kanhaiya Kumar with shoes on Rajpath in the capital. Credit: Shome Basu

Lawyers beat an effigy of Kanhaiya Kumar with shoes on Rajpath in the capital. Credit: Shome Basu

The incidents at Jawaharlal Nehru University in the second week of February resulted in its vice chancellor allowing the police to enter the campus. A meeting on Kashmir was planned which was taken to be anti-national. After that, the ABVP, the student wing of the BJP, joined issue to the point of provocation. Ministers of the BJP-led government wanted anti-national sloganeers to be punished irrespective of what offence was made out. Somebody had to be picked up, arrested and charged with the most serious of offences: sedition. The finger was pointed at Kanhaiya Kumar, president of the JNU Students Union.

Kanhaiya never raised anti-national slogans and swore by the constitution. But a scapegoat was needed so a vindictive arrest was made. For anyone who knows the law of sedition, there was no case against him. After Kanhaiya’s arrest, he was remanded to police custody for three days. When he came back to Patiala House on February 15, there was mayhem on the part of BJP supporters. Journalists were beaten up. The atmosphere was ugly and violent.

On February 17, the Supreme Court passed orders in the morning for the police to protect the accused and to give access and protection to named lawyers and journalists who were there to attend the hearing. Despite those orders, Kanhaiya was attacked. When the Supreme Court sent a team that afternoon to investigate what had happened and how, the Patiala House court was still overrun by a swarm of lawyers intent on violence, intimidation and goondaism. The team itself faced hostility. Slogans, abuses, bajri and other material were hurled at them. This was mobocracy, political cruelty, a failure of justice, not devoid of political manipulation.

Misreading the law on sedition

Sedition entered Anglo-Indian law in 1870 when Sir Barnes Peacock discovered that the comprehensive Indian Penal Code of 1860 had overlooked its inclusion. With its addition, anyone who said something perceived as incitory – bringing the government established by law into hatred or contempt, or exciting disaffection – was deemed seditious. The provision was used politically against the freedom movement, as in the celebrated Tilak case, and indifferently against speech not liked by officials.

The constituent assembly, while drafting India’s constitution, was wary of protecting colonial laws used to silence the freedom movement. The term “sedition” had been included in the draft of April 14, 1947, the constitutional advisor’s draft of October 1947, the draft constitution of February 1948 and the reprint of October 1948 as one of the restrictions to free speech. K.M. Munshi suggested in the constituent assembly that the word “sedition” be replaced by “undermines the security of, or tends to overthrow the state” precisely because ‘sedition’ – as defined in section 124A of the IPC – was notorious and had been used against freedom fighters. Thakurdas Bhargava moved to insist that restrictions be ‘reasonable’. Ambedkar accepted these amendments with the Munshi substitution. When the first amendment of 1951 was made following the Supreme Court’s decisions in Romesh Thapar and Brij Bhushan (1950) the reasonable restrictions permissible in Article 19(2) were re-shuffled to include “security of state, friendly relations with foreign states, public order, decency, morality, contempt of court, defamation and incitement of offence.” In 1963, “sovereignty and integrity of India” was added. Of course, “sedition” could be swallowed in this avalanche of restrictions, but the fact remains that it was specifically excluded from the list by the constituent assembly.

In 1959, the Allahabad high court took the lead in declaring the law of sedition in section 124A of the IPC unconstitutional. But in Kedar Nath (1962), the Supreme Court preferred to dilute the sedition provisions to protect mere abusive words from prosecution. The court laid down the need to show intention as also the imminent threat of inciting or actual incitement to violence. This was an advance, but with all its potential nuances. It would have been better for the Supreme Court to have struck down the sedition provisions as unconstitutional. No doubt the Supreme Court in Balwant Singh (1995) made short work of sedition charges against two persons who had raised raised slogans without creating disorder or inciting violence. This was not seditious, it ruled.

But is justice in sedition cases to be found only through the intervention of the Supreme Court? The police are ruthless in their understanding of sedition as a wide ranging offence to arrest anyone who attacks the government or government policy. This is why sedition should have been struck down and removed from the statute book. Even if this was done, Indian governance would still have ample provisions to deal with public disorder or all kinds of conspiracies to wage war against the state. Sedition has no place in a democratic India committed to constitutionally protected free speech.

That said, the law as laid down by the Supreme Court at present is that the offence of sedition under section 124A of the IPC is constitutionally subject to the Supreme Court’s caveat in Kedar Nath’s case (1962) – that “very strong speech (or) very vigorous words… very strong criticism of measures by government or acts of officials… would be outside the scope of the section.” Further “…merely creating disaffection or feelings of enmity against the government” is not sedition. What is required is “incitement to violence or the tendency or the intention to create public disorder.” Intent and threat to public order by resort to violence were seen as necessary ingredients of sedition – without which the provision would have been unconstitutional.

However, politicians in power, and the police, refuse to accept the limitations imposed on the law of sedition. For them, sedition is a “catch all” offence to entrap anyone whom they don’t like or who expresses dislike of them. Their attitude is: “Arrest them, remand them to custody, deny them bail, take them through a trial even if they are found to be acquitted eventually.” It is this scary attitude of making the process the punishment that characterises the total misuse of sedition.

Sedition has become a play thing in the hands of officialdom.

  • Binayak Sen has been convicted of sedition, but was given bail by the Supreme Court both before and after his conviction. His appeal against the conviction is pending. An irate and flabbergasted Supreme Court in 2011 made it clear that a Maoist sympathiser cannot be necessarily assumed to be guilty of sedition. Binayak Sen’s conviction was widely condemned.
  • Geelani and Arundhati Roy made speeches at a conference on Kashmir, called “Azadi – the only way”. It was asserted that Kashmir had never been an integral part of India and that this had been accepted by the government. While an FIR was filed, the Central government in 2010 did not think that such charges were proper.
  • In January 2012, Aseem Trivedi was charged with sedition and other offences by the Beed district court for insulting cartoons about the national emblem, flag and parliament.
  • In 2011, the police in Punjab charged five Sikhs with sedition for promoting enmity among between groups and affecting the integrity of India because they published a pamphlet of a Jarnail Singh Bhindrawala speech while knowing that a lot of such material was already in the public domain.
  • In 2012, many protestors near the nuclear plant at Kudankalam were charged with waging, war, sedition and promoting enmity among groups.
  • In 2008, the Ahmedabad police commissioner, O.P. Mathur, filed a complaint against the Times of India resident editor and a journalist for sedition and criminal conspiracy. A politician said this could only be “at the behest of a dictator”.

Of course, sedition is not the only offence used to put down public comments. The British Raj legated to independent India innumerable other offences of conspiracy, waging war, causing enmity between groups, deliberately insulting religion, breach of place and so on. That is to say, an entire apparatus of a potential police state. The police and their political masters can arrest and charge at will, but sedition in an archaic relic of an archaic law, being punishable for three years or life with or without fine. It carries with it a moral sting. A person accused of sedition is not just portrayed as a bad man but profiled against the nation – an indictment furthered by an amendment to the IPC of 1972 criminalizing imputations and assertions against national integration and the sovereignty and integrity of India. This is quite an intimidating ensemble of offences which could be used at random whenever a twitching hand wants to incarcerate a dissenter and hold him to obloquy.

Misreading the JNU event

An interesting exchange took place in a public order case of Beatty v Gillbanks (1882) between the judge and counsel.

Judge: Suppose the appellants knew that their procession would be opposed, and that violence might probably ensue, and they still proceeded with it?
Counsel: The answer to that is, that their procession being lawful they were entitled to be and ought to have been protected by the authorities from such opposition. If it were not so, mob rule would soon take the place of law and order. It is disorderly rowdies and riotous toughs whom the police should put down, and not lawful and peaceful processions.”

It often happens that a peaceful meeting would have remained so, but was disrupted by rowdies and toughs. Surely it is the latter who are to blame for the violence and incitement to violence. In JNU who caused the actual incitement? Not the factum or posters of the meeting, but those who collected to threaten violence. In JNU, it was the ABVP that went out of its way to provoke disaffection. They provoked the alleged provocateur.

Let us examine the facts. On February 9, 2015, ten students who are former members of the Democratic Students Union, (DSU) organised a cultural evening to assert Kashmir’s right to self-determination (a subject on which many scholars and activists have diverse views), the wrong judicial verdict on Maqbool Bhat (which many have called a judicial murder, without exciting the contempt jurisdiction of the Supreme Court) and the wrongful conviction Afzal Guru, who it was urged should not have been hung (many oppose the death penalty and oppose the medieval cry of “no mercy”). Of course, these views are as strong as they are well known. Such views are contrary to the national policy of successive governments and may be provocative, but surely do not constitute sedition.

The ABVP complained to the administration. An irate registrar had his own take: “How could we allow them to organise an anti-India programme?” In a democratic institution, perhaps the answer lay in a boycott by those who did not want to attend. But, it appears the ABVP, which called a protest outside the dhaba, came with provocation aforethought:

“This programme is anti-constitutional. Anyone who tries to portray a terrorist as a matter will have to face us. We won’t allow such anti-national programmes on campus”.

Vice Chancellor Jagdish Kumar echoed Registrar Zutshi’s line that the university had been deceived. The VC gave a free hand to the police to enter the campus and do whatever it wanted – no doubt for the greater glory of India. Lalit Pandey of the ABVP welcomed discussion but said “such anti-national events will not be tolerated”. In other words, do not engage with anyone who feels Kashmir’s status quo needs changing. Would JNU not sanction a Ph.D. candidate to pursue a dissertation on the possibilities of Kashmir as a separate nation? Soon the Kashmir issue was side stepped and it became an ABVP event. Quick on the draw, it was the ABVP who created a ruckus, including being joined by outsiders brought in to foment trouble and join the fray. There was a call to “Shut Down JNU”. All they needed was the provocation of pro-Kashmir supporters who portrayed the future as a jang (war).

The ABVP carried their own protest on campus in a manner that exacerbated the situation. They took charge. The university administration was with them. The HRD minister took the cultural event as an attack on “Mother India” and home minister Rajnath Singh welcomed debate but warned that “anti-India sloganists will not be spared.” But who created the ruckus, the violence and terrorised the campus? It was the ABVP. A BJP MP from Delhi, Maheish Girri went to the police station to lodge an FIR on February 11 against 20 unknown persons. On the facts, the unknown persons could have been members of the BJP. But the police seemed briefed by BJP sympathisers to target other students. The VC allowed the police, who should have had no place on a campus. They raided the girls’ hostels. For what?  Meanwhile, following a meeting at the Press Club, Professor Ali Javed and SAR Geelani were subjected to police interrogation. In time, Geelani, acquitted in the Parliament attack case, would also be arrested for sedition.

Kanhaiya Kumar was arrested on February 13, with the police invoking the law of sedition. Nothing could have been more unwarranted. He protested that he had always declared Kashmir integral to India and had nothing to do with any seditious activity. He thought this ensnaring was revenge because he had defeated the ABVP to become president of the students union. Taken to court, he was remanded for custodial interrogation for three days. For what?

According to Delhi police commissioner B.S. Bassi, sedition was rightly invoked. But he got section 124A totally wrong by saying:

“If one reads the section, they would see that any activity that spread hatred towards the country or the government is covered under this section.”(emphasis added)

There is something seriously wrong in Bassi’s understanding of the law. There is also something wrong with Rajnath Singh’s counter allegation that the Lakshar-e-Tayyaba was involved. This was based on planted ‘tweets’. When you are supported by the RSS and avidly supporting ABVP and other right wing elements, you don’t condemn them but invent conspiracies without foundation. What we are witnessing is India’s McCarthyism. The ABVP and others are front line dictators, Rajnath Singh and the government their ally.

Misreading ‘Mother India’

When the police moved into JNU after the February 9 incident, HRD minister Smriti Irani proudly declared: “The nation can never tolerate an insult to Mother India.” What is this Mother India that Irani is talking about? It couldn’t be the destruction of the Babri Masjid. Or the yatras that preceded it. Or miscreants destroying books at the Bhandarkar Institute in Pune. Or the persecution of artists and writers. Or the demand to convert India into a Hindu state. India is a most complex nation, the coming together of a multi-cultural, multi-linguistic, multi-religious society. Mother India is not a slogan. She is an idea that spreads across the nation and the world. She represents history and the future.

Geographically she extends from Kashmir to Kanyakumari and into the diaspora. She reorganises this huge diversity, the promise of justice to the poor, to the majority and minorities. She tolerates dissent on all issues – even the most sacral. She encompasses democracy hand in hand with the rule of law and punishes with a sense of justice. She has a commitment to truth, tolerance and yet has a commitment to defend herself and deter those that threaten her. Everyone matters. “Everyone does not have to sing the same song” is how the Supreme Court put it. Indeed, it would be a tragedy if this were not so.

It is precisely Irani’s inability to comprehend what Mother India is that is the root of the problem. Blinded by the perversity of her narrow understanding of the nation and coloured by her politics, she portrays disagreement as unpatriotic and traitorous. Of course, we do know what constant appeals to the Fatherland did over a century to lead to a ferocious war that engulfed humanity. The use of the feminine ‘mother’ projects Irani’s intimations of a vulnerable India. But the nation is stronger that she believes. Mother India is concerned with all her people: the poor, the excluded, the voiceless, the frustrated, the believers, the non-believers, the brilliant and not so brilliant. Mother India is surely open to complaints, harsh words, angry exchanges, provocations and provocative replies. All that Mother India asks for is honesty and peaceful exchange, not the kind that the ABVP stage-managed in JNU with the tacit approval of Irani.

By February 14, the RSS was demanding a purge of all anti-national elements in all universities. This is part of a larger plan of taking over higher education and institutes of research. Recall the events at the Film and Television Institute in Pune, the events in Hyderabad and the murder of Kalburgi and others. All in the name of Mother India. Given this agenda, the groundless sedition charges against Kanhaiya Kumar will not be dropped. He is the victim of his own success in opposing the ABVP electorally in JNU and winning the election as president of the student union. He was already a marked man and will continue to remain so.

A strange course for the law

When home secretary Rajiv Mehrishi all but pronounced a verdict on the “anti-national activity” of Kanhaiya, he overlooked the fact that what the ruling party supporters were doing was also anti-national. Faced with the conduct of the ABVP and of thugs at the court hearing at Patiala House, the official response was the law will take its course. But how did the law take its course for Kanhaiya Kumar? Even before the proceedings began in court on February 15, some “lawyers” taunted JNU professors and academics to give up their seats purportedly because “the court was not a JNU hostel”. A scuffle occurred. Outside, satchel carrying youths were beaten up because they were JNU students. Kanhaiya’s friend, a former Kerala minister, was also thrashed. The students were told they “would be sent to Pakistan”. Journalists were threatened not to film events. Alok Singh of the Indian Express was beaten. Azan Javaid hid in a court room. Neither journalists nor teachers were spared. BJP MLA O.P. Sharma and his supporters showed little restraint in seeking to silence Ameeque Jamai, whom Sharma claimed was shouting ‘Pakistan Zindabad’ slogans. In interviews, Sharma promised to do this again if provoked.

For the police commissioner, this mayhem was “a minor scuffle” but can there be justice according to law in an atmosphere where there is tension in court; and mayhem outside with journalists told that their phones and bones would be broken? Can lawyers beat up journalists in court?

On February 16, the Chief Justice of India agreed to list a petition which asked whether justice can ever take place in this charged atmosphere. A memorandum of the 800 journalists who marched to the Supreme Court was submitted. The case was heard by Supreme Court judges J. Chelameshwar and A.M. Sapre. Even in court on February 17, there was a shout of ‘Vande Mataram’. The person, Rajiv Yadav was purportedly a lawyer, who was let off with a warning. The Supreme Court was informed of the tension at the Patiala House where a shouting mob  had made peaceful entry without police escort impossible. An elaborate order was passed around noon by the Supreme Court for the protection of Kanhaiya, his lawyers, supporters and journalists as the eyes and ears of the public. By lunchtime, the court was told that the accused was beaten up and a strong mob was on the court premises outside the court building. The court deputed a team consisting of Kapil Sibal, myself, Harin Rawal, Ajit Sinha, ADN Rao, Dushyant Dave and included Prashant Bhushan (who did not eventually join the team). It is difficult to fathom why the police kept us stranded at the Supreme Court for 15 minutes even though under court orders. On Tughlaq Marg, it allowed itself to be casually caught in traffic,  and eventually the team took the decision to walk. As we neared the area outside the court, we were greeted with slogans: the team got in to discover the police had not been able to protect a distraught Kanhaiya Kumar. He had been thrashed and beaten when escorted into court.

The police were not forthcoming in their explanations and there seemed a reluctance to cooperate, except perfunctorily. The committee was also told that a stranger, wearing dark glasses and a suit, purporting to be a lawyer, had got into court. He was not on the list of permitted lawyers as per the Supreme Court’s orders. He went into the court where the accused was reportedly pushed. The registrar general of the high court, who had also been asked to be present at the Patiala House proceedings by the Supreme Court, told us that he had asked the police to stop and arrest this man. The police were in the court at the time but allowed this person to get away. Their explanation was far from satisfactory. Apart from ineptitude, it appeared as if some restraining hand guided them. When our team went out from the court rooms, the huge mob of lawyers was still there a few feet away shouting slogans against us: ‘Pakistan ke dalley, B**d’, along with other abuses. At places, lawyers broke the protective barricades. One or two members of the committee were pushed, bajri and sharp bits of flower pots were thrown at them. An oral report was given to the Supreme Court bench in an extended hearing. It is impossible to believe that court premises can become mobs of partisan and violent lawyers. It is equally impossible to believe the police could not do their job. The accused was assaulted; an atmosphere of terror was allowed to spread across the court premises for two days.

Conclusions that are inescapable

A review of these events clearly establishes the following:

(a) an event on Kashmir seeking its self determination is not anti-national, even if the slogans raised there were hurtful and provocative.

(b) Slogans against India or in favour of Pakistan are provocative and can be perceived as anti-national.

(c) The charge of sedition is made if only if there was intentional incitement leading to violence.

(d) If a crowd is deliberately assembled by the ABVP and outsiders, they were responsible for the ruckus. The university needs to deal with them.

(e) The VC’s carte blanche to the police was ill conceived and resulted in the police raiding girls’ hostels.

(f) The arrest of Kanhaiya Kumar for sedition was clearly contrary to the law. He raised no Kashmir slogans, sought calm and pledged his support to the constitution and country at the time.

(g) Police commissioner Bassi does not understand the law under which Kanhaiya Kumar has been arrested.

(h) The case has less to do with the shouting of anti-national slogans on campus and arguably more with the ABVP and Sangh parivar’s desire  to control university campuses by multiple means and dislodge liberals, the left and, indeed, learning and exchange.

(i) ABVP, RSS and Sangh parivar- linked persons decided to create havoc and have taken this opportunity to beat up journalists and others, creating a ruckus in court and unleashing violence outside it.

(j) The police’s failure to make quick arrests in the obvious case of beatings by BJP and Sangh parivar activities was deplorable.

(k) The Supreme Court’s orders to the police were not carried out in letter and spirit

(l) Even the Supreme Court committee was taunted by the mob with slogans and things were thrown at them.

(m) The police have not done their job. Political collusion cannot be ruled out.

(n) The police commissioner and his officers have a lot to answer for. Changing him is not enough.

(o) This is a political case. The charges must be dropped.

(p) Action has to be taken against lawyers identifiable by video. There are enough videos to show the real culprits who must be exposed. Among them is the lawyer Surinder Tyagi, who said that he is proud to have discharged his fundamental duty to attack Kanhaiya Kumar and that his supporters would ensure that Kanhaiya is not safe even in Tihar. Other lawyers, including Vikram Singh Chauhan, who beat up journalists and students are unrepentant.

(q) The law of sedition is open to gross abuse. It is an ignominious law which should be repealed.

(r) Violence should never happen on court premises in future. Concrete steps are needed to ensure this with special security arrangements and cameras to identify breaches.

(s) We have just witnessed a week of shame for “Mother India”, when democracy was reduced to rubble and the rule of law was left gasping for breath.

Rajeev Dhavan is a senior advocate, Supreme Court of India

In an earlier version of this article, the 10 students who organised the February 9, 2016 meeting on the JNU campus were incorrectly described as member of the DSU. They are in fact former members of the organisation.

Even If Privacy Is Not a Fundamental Right, We Still Need a Law to Protect It

The Constituent Assembly considered including privacy as a fundamental right but then dropped the idea.

The Constituent Assembly considered including privacy as a fundamental right but then dropped the idea

The Constituent Assembly, meeting in 1949

The Constituent Assembly, meeting in 1949

There has been much debate over the last few weeks as to whether or not we have a Fundamental Right to Privacy in India. The Attorney General told the Supreme Court that we do not. Some lawyers disagreed with him on the basis of the right that has been implied through a long jurisprudence while others agreed, though for different reasons.

The debate, while very interesting in itself, set me thinking down a slightly different tangent. Why is it, I asked myself, that the draftsmen of the Constitution, wise men that they were, forgot to include an explicit Fundamental Right to Privacy? Was it oversight? Or was there a deeper, more deliberate reason? And if so, will that give us some clearer insight into what the Supreme Court should be thinking about before handing down its judgment?

At the time the Constitution was drafted, India was in the process of shrugging off foreign rule. For centuries, it’s citizens had been systematically subjugated and denied their civil liberties  –  not the least of which was personal privacy. It was also a time when the rest of the world was struggling to put World War II and all the inhuman excesses of the Nazis and Fascists behind them. One would imagine that at a time like this, the need to protect personal privacy would have been at the forefront of public discourse.

And yet, despite the historical context in which it was framed, the Constitution we adopted on the 26th of January, 1950, contained no mention of a Fundamental Right to Privacy.

The Constituent Assembly debates

The logical place to start any investigation into the minds of our founding fathers is the Constituent Assembly Debates. Happily, the entire proceedings of the Constituent Assembly have been made available online and it was relatively easy to search through the many pages of text for a mention of privacy. After much poking around, all I could find was a passing reference to the right to secrecy of correspondence in a speech by R. K. Sidhwa:

I might also state that the Committee had suggested that the secrecy of correspondence should be guaranteed and that there should be no kind of interception of correspondence, telegrams and telephones, but the main Committee has deleted it. Therefore, it is unfair to say that the Fundamental Rights Committee did not consider this question.

This was not hugely helpful , but it was a promising start. At least it wasn’t a case of careless oversight. The Committee had clearly came to a considered view that we don’t need a fundamental right to privacy. What was still unclear was why.

I couldn’t find anything online that answered that question. So I consulted B Shiva Rao’s Framing of India’s Constitution, an extensive collection of debates and discussions around the text of the Indian Constitution.

The first mention of something resembling a right to privacy is in K T Shah’s Note on Fundamental Rights in December 1946. The paper discussed the history of Fundamental Rights around the world and listed a number of essential rights  – many of which eventually found their way into our Constitution. Shah considered the right to privacy to be an essential part of the right to liberty. He wrote:

The most important of these relate to the liberty of the person and privacy of the home. No interference of that right can be allowed without due process of law. This is a guarantee against arrest, imprisonment or detention without due process of law, or search warrants of a general character, invasion of the home and the like. Unlike the absolute monarchy of the days gone by, these had been amongst the principal grievances of the common people. It is now generally admitted that these are conditions essential and indispensable for living on any decent level of existence.

Sub-committee on fundamental rights

In 1947, the Constituent Assembly established an Advisory Committee to prepare draft articles on fundamental rights and th rights of minorities. This committee had overall supervision over five sub–committees, including the Fundamental Rights Sub-Committee which had been entrusted the task of framing the fundamental rights of citizens.

During various meetings of the sub-committee, distinguished members including K M Munshi, Harman Singh and Dr. Ambedkar, strongly promoted the inclusion of a right to privacy as one of the fundamental rights.

When Munshi presented the first draft articles on Fundamental Rights on 17 March, 1947, Sub-Article (1) stated that every citizen, within the limits of the law of the Union and in accordance therewith should have:

(e) the right to be informed within twenty four hours of his deprivation of liberty by what authority and on what grounds he is being so deprived

(f) the right to the inviolability of his home

(g) the right to the secrecy of his correspondence

(h) the right to maintain his person secure by the law of the Union from exploitation in any manner contrary to the law or public morality

This thought was echoed in Dr. Ambedkar’s draft as well:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause, supported by oath of affirmation and particularly describing the place to be searched and the persons or things to be seized.

The April 1947 Draft Report of the Sub-Committee on Fundamental Rights included specific mention of both a right to secrecy of correspondence as well as a right against unreasonable search and seizure. Article 9(d), that had been adapted from the Weimar Constitution, stated that every citizen should have the right to enjoy secrecy over his correspondence, with the proviso (borrowed from the Indian Post Offices Act) that the legislature could, by law, regulate the interception or detention of articles and messages in the course of transmission in the event of a public emergency or for furthering the interests of public safety and tranquility.

Another clause (borrowed from the Fourth Amendment to the US Constitution), sought to provide all citizens with a fundamental right to secure their person, house, papers and effects against unreasonable search and seizure and stipulated that any such search and seizure could only take place on the basis of a detailed warrant that described probable cause.

The detractors

However, right from the start, there were strong voices of dissent. Members such as B N Rau, A K Ayyar and K M Panikkar argued that the right to privacy should not be elevated to the status of a Fundamental Right.

In the notes to the draft Report, Rau went into some detail about the possible effects of some of the provisions of the draft:

If this means that there is to be no search without a court’s warrant, it may seriously affect the powers of investigation of the police. Under the existing law, e.g. Criminal Procedure Code, Section 165 (relevant extracts given below), the police have certain important powers. Often, in the course of investigation, a police officer gets information that stolen property has been secreted in a certain place. If he searches it at once, as he can at present, there is a chance of his recovering it; but if he has to apply for a court’s warrant, giving full details, the delay involved, under Indian conditions of distance and lack of transport in the interior, may be fatal.

Perhaps the most vocal critic of the right to privacy was Alladi Krishnaswami Ayyar, whose comments on the draft indicated his vehement dissent:

In regard to secrecy of correspondence, I raised a point during the discussions that it need not find a place in a chapter on fundamental rights and that it had better be left to the protection afforded by the ordinary law of the land contained in the various enactments. There is no such right in the American Constitution. Such a provision only finds its place in the post First World War Constitutions. The effect of the clauses upon provisions of the Indian Evidence Act bearing upon privilege will have to be considered. The Indian Evidence Act hedges in the privilege with a number of restrictions vide. Chapter 9 — Sections 120–127. The result of this clause will be that every private correspondence will assume the rank of a State paper or, in the language of Sections 123 and 124, a record relating to the affairs of the State.

A clause like this may checkmate the prosecution in establishing any case of conspiracy or abetment in a criminal case and might defeat every action for civil conspiracy, the plaintiff being helpless to prove the same by placing before the court the correspondence that passed between the parties, which in all these cases would furnish the most material evidence. The opening words of the clause “public order and morality” would not be of any avail in such cases. On a very careful consideration of the whole subject, I feel that inclusion of such a clause in the chapter on fundamental rights will lead to endless complications and difficulties in the administration of justice. It will be for the committee to consider whether a reconsideration of the clause is called for in the above circumstances.

With regard to Clause 10 relating to unreasonable searches he was just as critical:

In regard to this subject I pointed out the difference between the conditions obtaining in America at the time when the American Constitution was drafted and the conditions in India obtaining at present after the provisions of the Criminal Procedure Code in this behalf have been in force for nearly a century. The effect of the clause as it is, will be to abrogate some of the provisions of the Criminal Procedure Code and to leave it to the Supreme Court in particular cases to decide whether the search is reasonable or unreasonable. While I am averse to reagitating the matter I think it may not be too late for the committee to consider this particular clause.

And re-consider they did.

After several rounds of debates it was eventually decided that the right to privacy be removed from the chapter dealing with fundamental rights. The final report of the Advisory Committee that was submitted to the Constituent Assembly, did not have any mention of the provisions relating to the right to privacy. This was the form of the chapter that was debated and eventually adopted by the constituent assembly.

The Lessons Learnt

While it is perhaps unwarranted, to allow the deliberations of the Constituent Assembly to guide our thinking as to how we should approach the right to privacy today, these discussions are instructive. In the first place, it is now quite evident that the fact that our Constitution is missing an explicit right to privacy is not an oversight. The draftsmen of the Constitution not only considered introducing a right to privacy, early versions of the Constitution actually included it. That the final draft did not include a right to privacy, was the result of much debate and deliberation.

So what should we make of the arguments that the Constituent Assembly used to eventually discard the right to privacy? If you read through the debates, the strongest reservation against elevating personal privacy to the status of a broad constitutional guarantee was the impact this would have on the ability of law enforcement to effectively investigate crimes. It was felt that if citizens have a fundamental right to privacy of correspondence, this would come in the way of the criminal justice system.

While I was helping the government draft a privacy legislation for the country, these were the very same arguments I was confronted with time and again. I was told that the threat of terrorism and anti-national aggression demands that investigative agencies be equipped with effective powers of investigation. That any such investigations will be hampered if “private” communications are protected under privilege. After all these years, its seems as if nothing has changed. If anything, the arguments that prevented the introduction of a right to privacy in the Constitution are more valid today than ever before.

But perhaps we don’t need privacy to be a fundamental right at all. No one, not even among the detractors in the Sub-Committee were of the view that privacy wasn’t important. There only argument was that personal privacy should be protected through a statute and not elevated to the status of a fundamental right.

There are many benefits to such an approach. For one, a statutory right to privacy could be made to apply to private entities as well as to the government  –  something that is not possible in the context of fundamental rights. Secondly, a detailed statute that sets out all the contours of privacy protection may well be more useful than a single line in the Constitution that guarantees the right without elaboration.

It’s all moot

But in many ways this discussion is moot. Like it or not, over the past 65 years, a strong jurisprudence has evolved through case law, articulating the implicit right to privacy  – almost, in the light of my newfound knowledge of the debates, in defiance of the wishes of the Constituent Assembly. From all accounts, when the Supreme Court issues its judgment on the Aadhaar case later this year, it is likely to follow the jurisprudence so far and uphold the implicit right to privacy.

Rahul Matthan is a Bangalore based lawyer