(From The Archives) Between Sedition, Blasphemy & Defamation + Eric Hoffer's The True Believer
A guide to calling people names. A theory of mass movements
Programming Note: We are on a short ‘writing’ break. Normal service will resume from Oct 24. Meanwhile, here are two essays from our archives.
Sedition, Blasphemy, Defamation
- Pranay Kotasthane
From our edition #115 on Mar 14, 2021
A Delhi Court Session Judge’s admirable order granting bail to activist Disha Ravi in the #ToolKit case made me reflect on sedition as a concept. Here are a few initial thoughts emanating from that exercise. Fair warning: this is a conceptual discussion and not a legal one. If detailed legal critique interests you, head over to these two articles by Gautam Bhatia (1 & 2).
The “crimes” of sedition, blasphemy, and defamation lie along a continuum. They are categorically similar in that they punish the written or spoken word directed at some other entity. Where they differ is the targeted object. Defamation laws punish verbal or written attacks against a person or a group of people. Blasphemy laws punish utterances against something considered sacred by a group of people whereas sedition laws punish utterances that can threaten the State.
A Few Definitions
Before wading in any further, understanding three political science terms — nation, state, and government — is important.
State is a political construct, an abstract political institution. Max Weber’s instrumental definition of the State as “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory” is especially relevant here. To ensure that all its individuals’ liberties are protected, a State is invested with the powers to use violence or force to prevent other belligerent groups from terrorising individuals. It is for this reason that a State maintains armed institutions like the police and the army.
Going by this definition, an anti-State act would be the one that challenges the State's monopoly over the legitimate use of physical force. In other words, an act of violence or the use of force by anyone other than the State becomes anti-State.
Government is a temporary governing body of the State. If the State is like a corporation, the government is like its management. State is semi-permanent. It will live on until it is overthrown or replaced and a new social contract is established. Unlike the State, the government is composed of a set of people organised into a hierarchy. When the electorate vote, they choose their government and not the State.
By this definition, an anti-government act would be the one that criticises the policies, strategies, and directives of the governing body in power.
Nation, on the other hand, is a mental construct. Ernest Gellner defines this concept precisely yet comprehensively thus:
“Two men are of the same nation if and only if they recognize each other as belonging to the same nation. In other words, nations maketh man; nations are the artefacts of men's convictions and loyalties and solidarities. A mere category of persons (say, occupants of a given territory, or speakers of a given language, for example) becomes a nation if and when the members of the category firmly recognize certain mutual rights and duties to each other in virtue of their shared membership of it. It is their recognition of each other as fellows of this kind which turns them into a nation, and not the other shared attributes, whatever they might be, which separate that category from non-members.”
In other words, nations are imagined. People belong to the same nation only if they consider themselves to be so.
An anti-national act thus could be of two types. One that denies the existence of such an imagined community. For example, libertarians could argue that only individuals matter and not the groups these individuals are a part of. And the other view imagining a nation along lines different from the dominant belief. For example, communism sees workers across the world as one “nation”.
What is Sedition then?
With these key differences out of the way, we are now in a position to understand sedition and blasphemy laws.
Sedition laws can lie on a continuum. In dictatorships and party-states, sedition laws are applied wantonly to criticisms of the government. That is, being anti-government itself is being seditious. In most modern democracies, however, sedition laws punish only those anti-State actions which have the capability to directly challenge the State’s authority. Thus, criticism of the Republic of India would not count as sedition but inciting violence against the police would count as sedition. Crucially, being anti-national is not the same as being seditious.
On the other hand, blasphemy laws penalise a subset of anti-national actions, the ones that call into question something held sacred. As the idea of individual freedom has gained prominence, blasphemy laws have been repealed in many places. Not in India though.
The Indian Sedition Law
Now we are in a position to understand sedition in India. India’s sedition law i.e. Section 124A of the Indian Penal Code has colonial origins. Unsurprisingly then, being anti-government was reason enough to be labelled seditious. Tilak, Gandhi and scores of other leaders were tried for sedition.
After independence, the stated aim was to get rid of sedition laws altogether. That never happened. Sedition law continued in its colonial avatar. What did happen is that the application of such laws reverted to a stricter interpretation. Anti-State acts were penalised and not anti-government ones as a result of a right to freedom of speech and expression. In subsequent court rulings, the scope of sedition was further truncated. Only those anti-State acts that had the tendency to incite violence or disturb law and order were deemed to be seditious.
This dissonance between the original definition and application continues to this day. See for yourself. The sedition law says:
“Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1.-- The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2.--Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.--Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Note how wide-ranging this law is. Even disloyalty and all feelings of enmity count as sedition. Now read the qualifier that the Supreme Court added in Kedar Nath vs State of Bihar 1962.
“..the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.”
In non-legalese, for an action to count as seditious, its connection with violence is necessary according to the Supreme Court but not so according to the original framing in the penal code.
This dissonance is a problem. To such an extent that the same judge presiding in two similar cases (Disha Ravi’s and Safoora Zargar’s), referring to the same 1962 judgment, reached two diametrically opposite conclusions! In Safoora Zargar’s case, bail was denied on the grounds that the connection of an act with violence is not necessary. In the Disha Ravi case, bail was granted on the grounds that the connection of an act with violence is necessary.
The other problem is the political economy of India’s sedition law. Because it is construed as a grave anti-State offence, it is cognisable i.e. investigation and arrest can happen based on just an FIR, and non-bailable i.e. bail is subject to the decision of a sessions judge. Such strict provisions mean that the police slap sedition charges indiscriminately and by the time charges are cleared, many years pass by. The process becomes the punishment.
Clearly, this needs fixing.
The Way Forward
Broadly, there are three ways out. The first method would be to revise the sedition law to end the dissonance between the text and its subsequent interpretation. Make the link with violence a necessary condition for the application of sedition.
A second way is to scrap the law altogether. If the tendency to cause violence is what triggers sedition, there are enough and more laws in place to address such actions. Even if this law were to be struck down, provisions to punish acts inciting violence against State, government, or other people will still be applicable.
A third way out is to address the political economy question by making sedition a bailable and non-cognisable offence. With nothing to gain by slapping the additional charge of sedition, its usage is likely to decline. A solution with a similar effect is to make police personnel comply with additional requirements before arresting a person for sedition. The Bombay High Court tried to do this in the Asim Trivedi case by issuing guidelines to police personnel listing specific preconditions. A failure to adhere to these guidelines made the police officer liable to dereliction of duty. To what extent these guidelines been adopted since then, I do not know.
Given my biases, the second solution is the ideal one. But it’s also the most unlikely one in the current situation. We in fact run a real risk of going the other way — sedition laws might well revert to punishing anti-government utterances and blasphemy laws might be used more frequently. Given this reality, focusing on changing the incentives of police might be more practical.
For now, I’ll leave with these lines in Disha Ravi’s bail order that need to reach far and wide:
“Citizens are conscience keepers of government in any democratic Nation. They cannot be put behind the bars simply because they choose to disagree
with the State policies. The offence of sedition cannot be invoked to
minister to the wounded vanity of the governments. Difference of opinion,
disagreement, divergence, dissent, or for that matter, even disapprobation, are recognised legitimate tools to infuse objectivity in state policies. An aware and assertive citizenry, in contradistinction with an indifferent or docile citizenry, is indisputably a sign of a healthy and vibrant democracy.”
A Self-Help Text For Andolan-jeevis
From our edition #114 on Mar 11, 2021
Two somewhat random thoughts triggered this column.
One, we have been talking about Radically Networked Societies (RNS) a fair bit here. These are non-hierarchical networks of individuals who share a common identity and take up a cause they are passionate about through adroit use of social media platforms and cellphones. In an RNS, there are no clear roles, the decision making is amorphous and the leadership is diffused. But things move really fast. The state which has to contend with RNS is hierarchical, slow and regimented. It can’t keep up. We have seen this with the many protests world over that have been triggered by RNS. Forget the state, even nimble hedge fund managers have found it difficult to stay in step with an RNS-like Reddit forum, r/wallstreetbets. We have made the case RNS are here to stay and the state will have to find a solution to control them.
But over the weekend I was struck with a thought. What have these RNS movements truly achieved? Have they turned themselves into mass movements and brought dramatic change anywhere? The answer is no. Over the last decade (starting from Arab Spring), there have been innumerable RNS movements driven by Twitter, WhatsApp and other platforms that have created a stir and captured media imagination. But they have been transient. Their long-term impact is yet to be seen. Does anyone really believe that the most long-lasting among RNS instances like Black Lives Matter or Occupy Wall Street will ever morph into something like the Civil Rights movement of the 60s or, more impossibly, the Russian revolution?
So, the question: why?
Two, the majoritarian problem that’s facing many democracies the world over today. This is the ‘tyranny of the majority’ that Burke and Tocqueville had warned about almost two centuries ago. So, the question is how do you trump majoritarian-ism in a democracy which is designed for it? Granted, it is not where a democracy should have reached, but having reached there how does it get out from it? A solution I have written about in previous editions is to do nothing. My argument has been it is impossible for a large agglomeration to remain stable over a period of time. It will splinter because the concept of political is about the existential distinction between friend and enemy like Schmitt wrote. So, you just wait for nature to take its own course. But that doesn’t seem a proactive solution to many. There must be a way to counter-mobilise the masses, they argue.
So, the question: is there a way?
Enter The Longshoreman Philosopher
Both these questions - why the many RNS movements haven’t turned into real mass movements and why is it difficult to counter-mobilise against majoritarian tendencies - bring me to the works of Eric Hoffer. More specifically, his first book - The True Believer: Thoughts on the Nature of Mass Movements (1951).
Eric Hoffer was an intellectual like no other. Consider this: he never finished even grammar school, he was blind between the age of 7 to 15, and he worked every day of his life as a longshoreman in the docks of San Francisco doing hard physical labour. Yet, or maybe because of these, Hoffer was a peerless social and moral philosopher with dazzling aphorisms and insights. At the age of 53, he wrote The True Believer, a slim book that packs in, to my mind, the most number of insights per page than any book I have read. It will be impossible to sum up the book in a few lines but let me try with a few helpful extracts from the book. Just to be clear, these do no justice to the richness of the text when read in full.
First, Hoffer establishes all mass movements, religious, political or social, are interchangeable. When the situation is right for a mass movement, it is right for any movement regardless of belief or dogma. So, for Hoffer, every mass movement from Christianity to Communism to Fascism have the same underlying features. As he wrote:
“Since all mass movements draw their adherents from the same types of humanity and appeal to the same types of mind, it follows: (a) all mass movements are competitive, and the gain of one in adherents is the loss of all the others; (b) all mass movements are interchangeable. One mass movement readily transforms itself into another. A religious movement may develop into a social revolution or a nationalist movement; a social revolution, into militant nationalism or a religious movement; a nationalist movement into a social revolution or a religious movement.”
Second, the movements get off the ground by what Hoffer called ‘Men of Words’. Most people don’t like change, no matter how dissatisfied they are with their present. They will seek change at the margins. They look upon a rabble-rousing change agent with suspicion. Men of Words, on the other hand, are different. Their core skill is their ability to articulate the need for change in a benign yet persistent manner. They find an audience with the restive masses with their farsighted prescriptions for change without an immediate sense of urgency.
“…. the man of words prepares the ground for the rise of a mass movement: 1) by discrediting prevailing creeds and institutions and detaching from them the allegiance of the people; 2) by indirectly creating a hunger for faith in the hearts of those who cannot live without it, so that when the new faith is preached it finds an eager response among the disillusioned masses; 3) by furnishing the doctrine and the slogans of the new faith; 4) by undermining the convictions of the “better people"— those who can get along without faith—so that when the new fanaticism makes its appearance they are without the capacity to resist it.”
Third, once the ground has been set by the Man of Words, the fanatics enter. They love chaos and they seek anarchy. The old order is rotten to its core and only a complete dismantling of it will satisfy a fanatic. They don’t want to waste time to reform it. It has to be overthrown. The fanatics get the mass movement rolling not with their convictions but something more primal. Hate. As Hoffer wrote:
“Mass movements can rise and spread without belief in a God, but never without belief in a devil. Usually the strength of a mass movement is proportionate to the vividness and tangibility of its devil.”
The fanatics are ready to sacrifice their lives to smash the old order. This passion is great when they are in a life and death struggle with their enemies during the movement. But it becomes a problem when victory is in sight.
“The danger of the fanatic to the development of a movement is that he cannot settle down. Once victory has been won and the new order begins to crystallize, the fanatic becomes an element of strain and disruption. The taste for strong feeling drives him on to search for mysteries yet to be revealed and secret doors yet to be opened. He keeps groping for extremes.”
Fourth, the revolution is then saved from the fanatics by the practical ‘Man of Action’. This marks the institutionalisation phase of the movement. The change that was so desired and is now at the doorsteps needs to be perpetuated through institutions and systems. This has to be done by the Man of Action. The practical man looking for order. As Hoffer wrote: “The genuine man of action is not a man of faith but a man of law.” He is seeking stability and he will go to the extent of coercing the masses to perpetuate the hard-won change.
“In the hands of a man of action the mass movement ceases to be a refuge from the agonies and burdens of an individual existence and becomes a means of self-realization for the ambitious. The irresistible attraction which the movement now exerts on those preoccupied with their individual careers is a clear-cut indication of the drastic change in its character and of its reconciliation with the present. It is also clear that the influx of these career men accelerates the transformation of the movement into an enterprise.”
Hoffer believed a successful revolution works when these 3 roles - Man of Words, Fanatic and Man of Actions - are split among different people who play their parts and move on. However, he was aware there was a rare breed of people who straddled these roles depending on where the movement was at any point in time.
“There are, of course, rare leaders such as Lincoln, Gandhi, even F.D.R., Churchill and Nehru. They do not hesitate to harness man’s hungers and fears to weld a following and make it zealous unto death in the service of a holy cause; but unlike a Hitler, a Stalin, or even a Luther and a Calvin,1 they are not tempted to use the slime of frustrated souls as mortar in the building of a new world. The self-confidence of these rare leaders is derived from and blended with their faith in humanity, for they know that no one can be honorable unless he honors mankind.”
Now back to the two questions I raised at the start of this edition - why the many RNS movements haven’t turned into real mass movements and why is it difficult to counter-mobilise against majoritarian tendencies?
Hoffer probably has some answers.
One, the men of words who can sustain a long campaign to “undermine institutions, discredit those in power, weaken prevailing beliefs and loyalties” are in short supply today. The modern men of words take on too many causes, speak on varied issues and often end up contradicting or discrediting themselves.
Two, fanaticism is cheap on social media. The cost of fanaticism is low. This creates a temporary mob of impassioned supporters of a cause who are high on noise and low on stakes. They are all fire and brimstone behind the cloak of anonymity on these platforms. They lack the fundamental Hoffer-ian feature that distinguishes fanatics from others: self-sacrifice.
As Hoffer wrote:
“One of the rules that emerges from a consideration of the factors that promote self-sacrifice is that we are less ready to die for what we have or are than for what we wish to have and to be.”
It follows that any counter-mobilisation against a majoritarian agglomeration must satisfy the requirements of a mass movement laid out by Hoffer. And what would that be? A real intellectual foundation that’s sustained over time by men of words followed by real activism and self-sacrifice by the fanatics to the cause. The men of action can then follow to institutionalise the change.
As I was reading Vinay Sitapati’s excellent Jugalbandi: The BJP Before Modi, I realised how Hoffer’s thesis on mass movements fits perfectly to the two seminal political events of India over the last century - the freedom movement leading to Congress hegemony till the mid-80s and the rise of the BJP and Hindu nationalism from then to the present. Both involved men of words creating the grounds for stoking dissatisfaction over years followed by hordes of self-sacrificing fanatics getting the movement off the ground. That then sets the stage for men of action to codify and institutionalise the change. What our history has shown is any mass counter-movement to the current order will take years to fructify with the right conditions. Of course, the current order will try and prevent the building up of the right conditions. That’s what we see around us now.
70 years since its first print, Hoffer’s ‘The True Believer’ has the best answers to the question that’s often asked in politics today - how will an alternative emerge? I can imagine a lot of people whom I can recommend it as an essential reading.