Why the US Cannot Be a Fig Leaf for India’s Crackdown on Dissent

Very little that the US has done with respect to debates on its army and borders can be used as justification by supporters of the current crackdown on dissent in India.

Credit: mea.gov.in

Credit: mea.gov.in

The detention of SAR Geelani for organising a meeting at Delhi’s Press Club and the charging with sedition of several students from Jawaharlal Nehru University (JNU) on the basis of an allegedly doctored video has revealed stark divisions in India about the belief in the freedom of expression. Supporters of the current dispensation in Delhi have often cited the US as the limit of what a democracy can accept. A popular refrain on the Internet and in television debates is that the US would not stand for discussing or celebrating a terrorist such as Osama bin Laden in its universities. Why then should India be expected to look upon discussions on the hanging of Afzal Guru, a convict in the 2001 Parliament attack case, benignly?

Right to free speech in the US

A look at US Supreme Court judgments and government action on the issue of the right to express political opinions reveals that chants in favour of Bin Laden or others considered enemies of the state would not have led to prosecution. Prominent American television show host Bill Maher did not face legal consequences for saying the 9/11 attackers were not “cowardly” and instead characterising American missile attacks in the Middle East as “cowardly.”

In response to comments on the importance of free speech in a democracy by US Ambassador to India Richard Verma, Union Minister M Venkaiah Naidu asked in parliament if the US would tolerate support for Bin Laden in its universities. Besides pointing out the false premise of that analogy (Bin Laden after all was not an American citizen), it is important to highlight US government’s absolute tolerance of a widely believed conspiracy theory regarding 9/11 called 9/11 Truth. ‘Truthers’ publicly argue their view that 9/11 was engineered by US officials. They hold rallies and have made films that are freely available online. No one has been charged criminally for voicing such opinions.

A better analogy to Guru is the case of Anwar al-Awlaki, an American citizen and member of the Al Qaeda known for his inflammatory rhetoric. Al Awlaki was “removed from the battlefield” via a drone attack in Yemen. US President Barrack Obama personally approved his execution. Two American organisations, the American Civil Liberties Union (ACLU) and the Centre for Constitutional Rights (CCR) challenged the government on the legality of the killing. The ACLU and CCR, however, have not been accused of betraying the country.

In 2013, Edward Snowden, a former contractor for the CIA, leaked documents from the National Security Authority, which revealed that the US had been conducting mass surveillance on its citizens. Chelsea Manning, a US Army soldier, released documents that contained embarrassing government secrets exposed by Wikileaks. Snowden, now facing charges under the Espionage Act, has been celebrated in American universities and other forums such as TED Talks. Similarly, many have supported Manning, who is now serving a prison sentence. The government has not pressed charges of sedition against or tried to criminalise those who seek to discuss and support Snowden or Manning.

How does the US deal with sloganeering that poses existential threats? The US has faced calls for secession from groups such as the Texas Nationalist Movement. There was even a secession petition with over 100,000 signatures. How many of the petitioners have been charged with sedition or any other crime related to these actions? Zero.

The US Supreme Court has repeatedly upheld the right to free speech. Most notably, in United States v. Eichman in 1990, the Court ruled that flag burning is protected by the First Amendment to the US Constitution, which guarantees the right to free speech. The justices reasoned that the right to communicate outweighed the state’s interest “in preserving the flag as a symbol of nationhood and national unity.” Similarly, in Snyder v. Phelps in 2011 the Supreme Court said the First Amendment protects the rights of protestors to picket funerals of war veterans. These cases built on the famous ‘Pentagon Papers’ case from 1971, in which the Court upheld the right of newspapers to publish classified documents stolen from the US government that put the US war in Vietnam in a bad light, reinforcing the principle that dissent even in wartime is constitutionally protected speech.

More recently, Apple is battling the Justice Department in the latter’s quest to make technology firm write code to allow government investigators backdoor entry into the iPhone of one of the San Bernardino shooters. Apple is fiercely resisting the order, arguing that its rights under the First Amendment would be violated. Neither the company nor CEO Tim Cook are facing charges of sedition for prioritising civil liberties over the FBI’s attempts to increase its surveillance capabilities.

Nationalism debate continues

For those of us expressing our views on Twitter from the comforts of our homes, the concepts of democracy and freedom are abstract. The willful misunderstanding of the limits to free speech is, however, having real life consequences for students at JNU. JNU Students Union leader Kanhaiya Kumar has been languishing in jail since February 12, while those who beat him in court premises in front of the police were out on bail within a matter of hours. Students Umar Khalid, Anirban Bhattacharya are also in police custody on charges of sedition.

The Indian Supreme Court in various court orders has clarified that advocating revolution is not sedition unless accompanied by a call for imminent violence. The Delhi Police has furnished no evidence that anyone at JNU promoted violence.

At the same time, we need to be cautious in viewing the US as the shining city on the hill for democratic rights. The justice system in the US is plagued with racial disparities, leading to the country having the largest share of prisoners compared with other countries. The McCarthy era witch-hunt against communists in the 1950s led to the suspension of the freedom to speak and associate freely. More recently, the Citizens United judgment in 2010 allowed corporations to spend unlimited amounts of money in elections. At no point, however, was the right to criticise these judgments ever brought into question.

India has already spent weeks fixated on the debate on nationalism. Human Resource Development Minister Smriti Irani’s speech defending her government’s actions in JNU has received much attention. What has remained hidden, meanwhile, is the botched performance of Home Minister Rajnath Singh in Pathankot, where he prematurely declared success against the attackers. The government has also got a free pass on explaining the breakdown of law and order at the Patiala House court, the discontent of the population in Kashmir, the intercaste violence on reservation in Haryana and the stagnant economy. The ruling party can attempt to explain its handling of the students in JNU through fiery speeches, but very little that the US has done with respect to debates on its army and borders can be used as justification by the supporters of this crackdown on dissent.

Madhavi Cherian recently received her PhD in Sociology from New York University.