Controlling Thoughts by the Empire : Importance of Shyam Balakrishnan v. State of Kerala

"Where the mind is without fear and the head is held high: where knowledge is free ...

Where the clear stream of reason has not lost its way into the dreary desert sand of dead habit: Where the mind is led forward by thee into ever widening thought and action let my country awake….".   

It was with the above immortal words of Rabindranath Tagore, Justice O. Chinnappa Reddy concluded his Locus Classicus ‘State Of Madhya Pradesh Vs. Ramashankar Raghuvanshi’ [AIR 1983 SC 374]. It was a case wherein the Supreme Court had considered an appeal filed by State of Madhya Pradesh against the MP High Court Judgment which quashed the Government Order terminating a school teacher alleging that “he had taken part in RSS and Jan Sangh activities”. Dismissing the Special Leave Petition Justice Reddy held as follows;

"India is not a police State. India is a democratic republic. More than 30 years ago, on January 26. 1950 the people of India resolved to constitute India into a democratic republic and to secure to all its citizens "Liberty of thought, expression, belief, faith and worship, equality of status and opportunity" ; and to promote "fraternity, assuring the dignity of the Individual". This determination of the people let us hope, is not a forgotten chapter of history. The determination has been written into the articles of the Constitution in the shape of Fundamental Rights and they are what make India a democratic republic and what marks India from authoritarian or police States.

“………………………………………Most people, including intellectuals, may not agree with the programme and philosophy of the Janasangh or the RSS or for that matter, many other political parties and organizations of an altogether different hue. But that is irrelevant. Everyone is entitled to his thoughts and views. There are no barriers. Our constitution guarantees that. In fact the members of this organization continue to be members of parliament and state legislatures. They are heard often with respect, inside and outside the parliament. What then was the sin the respondent committed in participating in some political activity before his absorption into the government service?”

“……………………..Sometimes they get involved because they feel strongly and badly about injustice, because they are possessed of integrity and because they are fired by idealism. They get involved because they are pushed into the forefront by elderly leaders who lead and occasionally mislead them”

It is on the lines of above thought Justice A. Muhamed Mustaque delivered the Judgment in Shyam Balakrishnan v.  State  last week. To quote:

“……Being a Maoist is of no crime though the political ideology of Maoist would not synchronize with our constitutional polity.  It is a basic human right to think in terms of human aspirations. The freedom of thought and liberty of conscience is a natural right and cannot be surrendered by any human being and that freedom is ingrained in human mind and soul. However, those freedoms become unlawful when it confronts with the physical laws of the State.  If the Maoist organisation is a proscribed organisation under law, activities of the Maoist organisation can be interfered.  If an individual or organisation abhors and resort to physical violence, law agency can prevent or take action against individual or organisation.  It is only when private thoughts or ideas become repugnant to public values as envisaged under law, the private activities become unlawful. ”

It will be interesting to discuss some old Cases in which the Courts had dealt with the ideologies like Communism and Maoism etc

In 1961, two young lawyers were denied the post of Munsiff by the Kerala Government though they had secured top Ranks in the selection process, for the reason that they were associated with Communist Party. They challenged the decision of the Government before the High Court of Kerala separately. Dismissing the Writ Petition filed by one of the lawyer [K.George], a Division Bench of  Kerala High Court comprising of Justices M.S.Menon and Madhavan Nair held as follows;

“Suppose a State of the Indian Union comes to the conclusion, bona fide, that the position is the same within its confines and refuses to appoint a dedicated communist to a post in which his loyalty to the State is of paramount importance, a Court in our opinion, will not be justified in altering the conclusion and directing an appointment. The question is not whether the particular philosophy to which a candidate is addicted is right or wrong, or whether the practice and propagation of that philosophy has been handed over or not. The only question is whether the tenets of that philosophy will produce approaches and reactions which will help or hinder the proper discharge of the duties of a specific post or office. [AIR 1964 Kerala 238]

Following the decision in George’s Case, the writ filed by the Second lawyer also dismissed. [L.Easwara Iyer and V.R.Krishna Iyer were appeared for them]. He later got selected as a District Judge with top Rank and appointed as a Judge in Kerala Higher Judicial Service. In due course he became a Judge in the High Court. Later he became the Acting Chief Justice of Kerala High Court and Chief Justice of Gauhati High Court and High Court of MP. He is none other than Justice U.L.Bhat, one of the best Jurists living in this Country Today.

The above Judgment was a big blow to the fundamental right to freedom of speech and expression.

After a decade, in 1974 Justice P.Narayana Pillai in Kuruchian Kunhaman v. State [1974 KLT 328- Concurring opinion] held as follows;

“The birth of the Marxist Leninist Maoist Party, the M. L.M., in this country is a reality. It is a historical event. Its activities, commonly called the Naxelite or Naxelbari movement, have by now become part of Indian History. Its object is to popularise the thoughts of Mao Tse Tung which, according to it is Marxism Leninism of the present era and apply his methods for, what it considers, the benefit of the country. The thoughts of great thinkers and the teachings of great men are not the monopoly of the country or the political society to which they belong. They have no geographical or political barriers. Therefore from the mere fact that the party draws inspiration from the teachings of Mao Tse Tung it cannot be taken that its members are less patriotic than the other citizens of this country. Although the party is seen­­ to believe in extra constitutional means to achieve its objective there is absolutely nothing to show that its members owe allegiance to a foreign power or are its stooges or spies here. In leaning on Mao Tse Tung for support the party does not expect him to descend here and give it material support, but only pins faith in the principles of Maoism and for what Mao stands for. In these cases members of the party and their supporters are seen to have engaged themselves in terrorist activities like attacks on police stations and looting of food grains and other valuable things. Food grains are seen to have been offered to the rural folk in the true Robin Hood style. It was not out of any personal animosity towards any particular person that the attacks on the Tellicherry Police Station and Pulpally Wireless Station were made and dacoities were committed at Chekadi. Even according to the prosecution the motive was only political and economic. It was to capture power and distribute wealth among the poor”

In Ms. Jyoti Babasaheb Chorge vs State Of Maharashtra a person was arrested for possessing books containing Maoist literature. While granting bail to the Accused, Bombay High Court has held that “the   possession   of   certain   literature   having   a particular social or political philosophy would amount to an offence, though such literature is not expressly or specifically banned under any provision of law, is a shocking proposition in a democratic country like ours”.

Now Justice Muhamed Mustaque went one step further and has held that being a maoist is not a crime.

In the words of Krishna Iyer “The compulsion of constitutional humanism and the assumption of full faith in life and liberty cannot be so futile or fragmentary that any transient legislative majority in tantrums against any minority by three quick readings of a Bill with the requisite quorum, can prescribe any unreasonable modality and thereby sterilize the grandiloquent mandate." [Maneka Gandhi v. Union of India, (AIR 1978 SC 597). But the judiciary is constituted as the ultimate interpreter of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of Government, what are the limits on the exercise of such power under the Constitution and whether any action of any branch transgresses such limits. The role of the judiciary is to protect the fundamental rights. A modern democracy while based on the principle of majority rule implicitly recognizes the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view. It is the job of the judiciary to balance the principles ensuring that the Government on the basis of number does not override fundamental rights. [A.P.Shah in Naz Jt]

Coming back to the core issue in Shyam Balakrishna, what concerns us is that who is a maoist/naxalite? Is membership of the banned organization necessary or a thought process/ideology can be termed as maoist? Is any action against state policies required or supporting the movement expressly is enough to be a maoist? Can there be a bifurcation amongst the naxal insurgents; those who can be termed as state offenders and those who cannot be i.e. criminal and non-criminal Maoists? If yes, who is to check this class division, state again? Will this classification be permissible in eyes of law?

In Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547 (Salwa Judum Case) it was observed -

• People do not take up arms, in an organised fashion, against the might of the State, or against fellow human beings without rhyme or reason. Guided by an instinct for survival, and according to Thomas Hobbes, a fear of lawlessness that is encoded in our collective conscience, we seek an order. However, when that order comes with the price of dehumanisation, of manifest injustices of all forms perpetrated against the weak, the poor and the deprived, people revolt.
• The response of law, to unlawful activities such as those indulged in by extremists, especially where they find their genesis in social disaffection on account of socio-economic and political conditions has to be rational within the borders of constitutional permissibility. This necessarily implies a twofold path: (i) undertaking all those necessary socially, economically and politically remedial policies that lessen social disaffection giving rise to such extremist violence; and (ii) developing a well-trained, and professional law enforcement capacities and forces that function within the limits of constitutional action. 

Atleast in four recent cases, apart from the ‘Salwa Judum’ judgment, the Supreme Court has protected fundamental rights of maoists as citizens. In K.VijayaLakshmi v Govt. of A.P (2009) 2 APLJ 52, the Andhra Pradesh High Court had affirmed validity of non issuance of interview letter for the post of Civil Judge Junior Division on a ground that her husband had allegedly close links with CPI (Maoist). The Supreme Court had however sent the matter back to the High Court for reconsideration as she could not have been deprived of her right to work based on her husband’s appearances for political prisoners as an advocate. While granting bail to Soni Sori and Ligaram Kodopi, the Supreme Court observed that due to chances of acquittal again (as what happened to her in 5 similar cases), bail cannot be denied. Similarly, bail was granted to Dr. Binayak Sen and Narayan Sanyal against charges of sedition.

At least in Three Judgments  [Sri Indra Das, Arup Bhuyan and Raneef Supreme Court had categorically stated that mere membership of a banned organization cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance of public peace by resort to imminent violence. In the above Judgments Justice Katju followed the U.S. Supreme Court decision in Elfbrandt Vs. Russell, 384 U.S. 17 (1966) which has rejected the doctrine of 'guilt by association'

Justice Katju also followed the following two US SC judgments

• Clarence Brandenburg Vs. State of Ohio, 395 U.S. 444 (1969) in which the U.S. Supreme Court went further and held that mere "advocacy or teaching the duty, necessity, or propriety" of violence as a means of accomplishing political or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed "to teach or advocate the doctrines of criminal syndicalism" is not per se illegal. It will become illegal only if it incites to imminent lawless action. The statute under challenge was hence held to be unconstitutional being violative of the First and Fourteenth Amendments to the U.S. Constitution.
• United States Vs. Eugene Frank Robel, 389 U.S. 258, in which the U.S. Supreme Court held that a member of a communist organisation could not be regarded as doing an unlawful act by merely obtaining employment in a defence facility.

Dissent is permissible in Democracy. But dissent cannot be unprincipled. An inevitable concomitant of this is that the state can control dissent. But this control can also not be unprincipled. How then can dissent achieve its true purpose ever and how can the governing set up ever exercise legitimate control to maintain statehood? The armed conflict for rights by men who have surrendered all hope to an institutional decay of power craving ruling establishments time and again adds further fuel to this question.Governments have been traditionally afraid from the very idea of dissent and disagreement. Conventionally they have whimsically regarded certain ideals as constituting a threat to their stable existence. The outlawing of a certain type of disagreement has thus been inbuilt into the structure of democracy as sedition, waging war etc. Citizens have a right to freedom of speech and expression. But this right cannot be extended to picking arms to uproot the government. People who follow an ideology have to be treated differently from those who raise weapons against the state. This question needs to be addressed by all the three pillars of Democracy, so that whimsical arrests and detention of innocent citizen be curbed.

 

M.A.Rashid is the Co-Founder of LIVE LAW.  He revised Ratanlal Dheeraj Lal “Indian Penal Code” (34th Ed) with Justice KT Thomas.

 

 

 

Read the Judgment here.