The Supreme Court, by restraining the Pune police from taking into remand the five rights activists arrested on Tuesday, has played the wholesome role envisaged by the framers of the Constitution who divided state power among the legislature, the executive and the judiciary so as to create checks and balances that would maintain and advance democracy. The court has checked the executive from carrying out what could easily be an excess and mandated the Centre and the state government to present their case justifying the arrests by September 6.
More significantly, the court defended the right to dissent, and, thereby, the freedom of expression guaranteed by the Constitution. This is of the utmost significance, in a growing climate of intolerance where many sections view dissent as being nothing short of anti-national. The court protected liberty to the extent possible before the police case is examined, by ordering confinement of the activists to their own homes, instead of sending them to police custody. The court’s observation that dissent is the safety valve of democracy is welcome not for its substantive content but for its affirmation of the right to entertain diversity of views. Viewing dissent as a utilitarian adjunct to democracy does not do justice to the integral role of dissent in deepening democracy. Dissent should be seen as a defining, constitutive part of democracy, not just a safety valve. Suppose there is no dissent and the view of the head of the government is the view of everyone else in the country. That would be an Orwellian dystopia in which progress depends solely on the vision and commitment of the person who occupies the most powerful office of the land. If that person is a philosopher king, society could gain. But then, that system of governance could be many things, but definitely not a democracy.
The court would do a major service if it were to not only reiterate the restrictive meaning of sedition derived in the Kedar Nath judgment but also prohibit, on pain of contempt, wanton misuse of the provision by lower courts, a trend that must not grow.