Disobedience in a democracy has suddenly become central to our public discourse because of the protests inspired by Shaheen Bagh. Clearly the government has no idea about the concept but there is some reason to believe that people opposed to the government’s position might also be mistaken about its dimensions. Several state assemblies have passed resolutions opposing the CAA-NRC-NPR and Chief Ministers have made statements about being determined not to implement NRC-NPR. Yet, direct questions about the impact of these state resolutions on parliamentary legislation, answered honestly, caused great discomfiture. Wisdom has it that you ask a stupid question, you get a stupid answer. Instead, the self-opinionated experts should have focussed on the concept of democratic disobedience to buttress moral resistance to an unjust law. There may be a difference between the disobedience by a citizen and that of a constitutional authority like a state assembly. Understandably, there are greater constraints on the latter. Yet, it is arguable that federalism has its own scope for disobedience beyond the technical textual dimensions. As the notion of constitutional morality is seen in current jurisprudence as an over-arching presence, federalism too must be seen as a touch stone for the constitutional arrangement.
Disobedience of law in a democracy depends a great deal on the quality of democracy we have. A law passed by the duly-elected parliament must ordinarily be obeyed, particularly by those who hold office by virtue of law and constitution. Then, of course, there is the Supreme Court that has the last word on the validity of the law. Symbolic disobedience may be justified at any stage to make a point to parliament and courts. But protesting a law that has the approval of court is a little more difficult to justify. Of course, there is the fact that the Supreme Court is neither infallible nor claims to be so. It has been known to change its view of the law, sometimes within a short time. But so long as a judgment holds, it has to be respected if nothing else than to preserve the standing of the court.
There are other issues to keep in mind as well. Gandhian satyagraha or civil disobedience is essentially a moral assertion and relies on example to make a point. A civil disobedient goes into the movement prepared to suffer sanction for breaking the law. Therefore, they make a point by suffering and not seeking forgiveness or mitigation of punishment. But it is, of course, another matter that their defiance of law causes unintended discomfort or inconvenience to others, both sympathizers as well as neutral persons. Those affected cannot be too demanding and place their rights entirely above those of the protesters.
The road that civil disobedience takes is not an easy or short one. One has to be ready for a long-distance journey; any expectation of rapid response and relief might well be lethal to the endeavour, particularly if one is up against an insensitive and conceited establishment. Hope is an important ingredient of civil disobedience, so is keeping the protagonists from crossing over to revolt and rebellion. Despite the anguish and frustration, the civil disobedient does not reject the system in entirety. The present movement identified with Jamia and Shaheen Bagh is wonderfully connected with the constitution and national symbols that are truly inclusive and participatory.
Once the battle for basic equality and dignity is won, there will be many other fields to conquer. We cannot rest drawing the line of resistance at our equal citizenship because all the issues because of which this drastic step was initiated must be addressed: harmony between faiths; equal opportunity for all; education, health care, housing and gainful employment. All these are not handouts for popularity but enable the empowerment of each citizen in our life time. A liberal democracy according to the political philosopher John Rawls ensures that people have maximum liberty consistent with equal liberty for others. Furthermore, any difference between people is permissible if to the maximum advantage of the disadvantaged. Our pervasive pragmatism generally overwhelms these principle of justice. We have a chance, indeed an imperative, to subscribe to a fresh compact with the people to meticulously implement those principles. We need not worry about the cynics who cry wolf at the slightest sound because our constitution provides ample safeguards of reasonable restrictions in order to protect the edifice of liberty from inimical forces. But those safe guards have to be applied with the greatest sense of responsibility, in the spirit of a sacred trust. Human dignity can be undermined in many ways: illegitimate incarceration, state brutality, economic assault, mass media defamation. Every human being deserves equal concern and respect, particularly when we disagree with their views. The right to disagree is a pivotal right.
(Salman Khurshid is a senior advocate, Congress party leader, and is a former Minister of External Affairs.)
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