Would The US, Bastion Of Free Speech, Have Handled JNU Differently? Probably Not

Should free expression allow for charged and inflammatory calls for the destruction of the Indian Union? In other words, should slogans chanted by an avowedly Communist student group, including Kashmiri separatists, at Jawaharlal Nehru University, such as “Bharat ki barbaadi tak jung rahegi” (there will be war till India is destroyed) and “Bharat ke honge tukde, Insha Allah” (India will be broken into pieces, God willing) be allowable as legitimate free expression?

The knee-jerk reaction from many liberal commentators, including initially myself, was in favour of the students’ right to free speech and against the government’s decision to arrest the leader of the student group under India’s sedition law. Many, again including myself, cited the United States and the First Amendment to its constitution as the benchmark guaranteeing almost unfettered freedom of expression.

But the reality is that the US, especially post 9/11, has imposed considerable curbs on free expression and indeed has done so during important episodes during its prior history, in particular the two world wars and the anti-communist movement during the Cold War.

What is most remarkable is that in an advanced liberal democracy with a constitution which arguably is the most protective of individual liberties anywhere in the world, successive governments, validated by the courts, have seen fit to restrict the freedom of expression in the interests of national security. This is especially noteworthy in a country which has not faced the threat of invasion of its territory since the War of 1812 and which has never faced any serious existential threat since its founding, barring the Civil War.

Contrast this to India, which at present, apart from the ever present danger of terrorist activities, has multiple internal armed insurgencies committed to the destruction of the republic: in Jammu and Kashmir, the Maoist belt, the north-east and in Punjab, just to name some of the most prominent. What’s more, to this day, significant chunks of Indian territory are held by sometimes hostile neighbours with whom India has fought wars: China and Pakistan. Given all of these threats, in a country as large and complicated as India, it’s a wonder that the Union is still intact, despite all these existential dangers.

The bottom line is that India is much more vulnerable than the US has ever been since its revolutionary war. But even the US with robust constitutional protections for free speech has significantly curtailed it in its fight against various threats, at present the threat of radical Islam.

Those who reflexively and baldly point to the US First Amendment to criticise the curtailment of free speech in India don’t know their facts. The US has multiple laws which taken together amount to strict proscription of sedition. The US in fact does have a rarely used section on sedition in the federal US code. Also, noteworthy is the Patriot Act, passed after the 9/11 attacks.

In the well-known case of the “Blind Sheikh”, Omar Abdel-Rahman, the US legal machinery convicted and gave him a life sentence for the crime of “seditious conspiracy”…and not for actually carrying out the 1993 World Trade Centre bombing in New York, which he did not do. He was convicted for preaching radical Islam to his followers which inspired them.

More recently, in 2005, an influential American Muslim scholar, Ali Al-Timimi, was sent to prison for life for inciting his followers to wage Jihad against the United States in the aftermath of 9/11. On his advice, some of his followers went to Pakistan and joined Laskhar-e-Taiba to help wage war against American troops in Afghanistan. Just like the case of the “Blind Sheikh”, Al-Timimi committed no act of violence himself, but was seen as crucially inspiring his followers to attempt to do so. It’s noteworthy that in this case no actual act of terrorism occurred which was nipped in the bud when authorities arrested Al-Timimi and his followers.

The truth is the US experience validates the current Indian government’s approach. If, as alleged by the authorities, members of the student group are shown to have ties to radical Islamist outfits and even Pakistani infiltrators, there is without doubt a prima facie case to throw the book at them.

From thousands of miles aways, it’s easy to romanticise America as the land of unfettered freedom. The reality is that freedoms in America, while considerable, are quite sharply restricted when it comes to matters that pose an imminent threat to the sanctity of the Union. It’s often forgotten that the secession of the southern states to form the Confederacy, which is viewed as legal by many constitutional scholars, was suppressed by President Abraham Lincoln and the Union armies because in his view preserving the integrity of the Union trumped everything, including the perfectly legally legitimate right of southern states to secede.

While India is not literally in the midst of a war, we’re neither fully at war nor at peace but face daily challenges to our existence as an independent and democratic republic. Let’s not forget that at the same university, a hotbed of radical leftist politics, another student group metaphorically danced on the graves of Indian soldiers killed in action in 2010 by celebrating their demise.

Freedom of expression is hugely important and worth protecting. But regrettably at times, this freedom may have to be curtailed in the interests of preserving our continued existence as a free and independent republic of law abiding citizens.

Rupa Subramanya is a Mumbai-based commentator who’s written for The Wall Street Journal India, Foreign Policy and The Globe and Mail.