The anti-national debate: It’s a crime without a law | analysis | Hindustan Times
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The anti-national debate: It’s a crime without a law

India is re-living the ironical truth of the old adage ‘patriotism is the last refuge of the scoundrel’. Today, it is the very idea of India that is being contested in the debates over the crime of being ‘anti-national’

analysis Updated: Mar 23, 2016 22:41 IST
Jawaharlal Nehru University student union leader Kanhaiya Kumar at a protest march to the Parliament House.
Jawaharlal Nehru University student union leader Kanhaiya Kumar at a protest march to the Parliament House.(AP File Photo)

Centuries ago, British poet William Blake finished his poignant poem The Chimney Sweep, with biting irony: ‘So if all do their duty, they need not fear harm’.

But the question is, who decides our ‘duty’, and who will deliver the ‘harm’?

Today, perhaps the most talked-about crime in the country is being anti-national. But it is a crime without a law, because our criminal justice system has no legal provisions defining either nationalism, or the nation or the anti-nation. So the crime of being anti-national is decided to a large extent by the public imagination of the nation, which is why this crime is tried and decided almost entirely by the media.

Read | Pune college principal retracts statement on ‘anti-national’ students

Increasingly, the criminal justice system is moving from ‘innocent until proven guilty’ to ‘guilty until proven innocent’, opting for custodial detention of legal innocents. The institutions and personnel who commit these crimes do so with the full protection of the law, under the full authority of being representatives of the law.

There is no cost to them whatsoever, and no accountability for what they do, so that, not only are they unaffected by the consequences of their actions, they are free to continue committing such crimes unchecked, and may even be celebrated for doing so. They are bound by nothing more than the weight of a conscience made increasingly flimsy by virtue of being a mere extension of the ‘conscience of the nation’. But this national conscience — like the nation itself — is an imagined and flimsy one, as was evident when the Supreme Court upheld a death sentence on those grounds. If that can happen, then it is clear that criminality — especially in cases of the monumental delusion of national security — is going to be proved not on forensic evidence, but by the fit between accused persons and a manufactured national imagination of the anti-national crime and the anti-national criminal.

The loose baggy monster of anti-national/ism has been, and continues to be, imagined and invoked, especially by influential TV channels that persistently seek to tailor the national imagination on the subject. Increasingly, the anti-national that is being profiled is constituted of social and demographic categories that are being seen as unacceptable or problematic to the mainstream imagination of the nation.

Read | The lunatic fringe is now the Hindutva mainstream

The serendipitous profile of the mainstream — Hindu, urban and mofussil, upper-caste, middle-to-upper-class, mostly north Indian, mostly male, and perhaps most importantly, liberal-to-Right in ideological persuasion — matches that of the majority of persons in the legislature, bureaucracy, judiciary, police and paramilitary force, the business and trading communities, white-collar corporate employees, teachers, and, tellingly, media workers (especially in the electronic media). It is through this media that this nation of a privileged minority sees itself, and only itself, as the true nation — the true ‘India’ (or ‘Bharat’, depending on linguistic and other ideological preferences).

But the vast majority of the population of India lies outside this profile. They don’t belong to this ‘India’, this ‘Bharat’. They live in the gutters and ghettoes, the fields and forests, the roadsides and ravines, the backyards and brothels of this nation. They are the rejects and the failures, the ones who didn’t or couldn’t acquire this profile. They are India, but they will always remain outside this ‘India’, and become anti-national the moment they question their exclusion.

So would anyone else who questions their exclusion, or who supports them, or speaks up on their behalf. In other words, anyone who does not participate willingly and actively in the production and reproduction of this ‘India’ — politicised students, factory workers demanding their rights, adivasis resisting predatory corporates, Dalits speaking up against oppression and humiliation, farmers committing suicides or demanding loan-waivers, women speaking out against sexual violence and harassment by the armed forces, social activists, civil and democratic rights activists, lawyers who represent them, Muslims, Christians, ethnic minorities — all of these, and more, stand as potential criminals in the terms of the unstated law of anti-nationalism.

Read | Kanhaiya barred from entering Hyderabad univ, will ‘struggle’ for Rohith

But precisely because it is a crime without a law to criminalise it, these anti-nationals are increasingly being thrown into jail to languish there till such time that they can prove their innocence — a process that can take 14 years of a person’s life, as happened with Mohammad Aamir Khan, the main accused in a Delhi blast case.

It is happening with Umar Khalid, Anirban Bhattacharya, SAR Geelani, GN Saibaba, and innumerable others, who are remanded as under-trials. It is not surprising that prison demographics anywhere in the country will rarely yield anyone with the social profile of the ‘national’ drawn above. It is also not surprising that by far the largest category of prisoners in Indian prisons is under-trials.

Meanwhile, the real criminals — the ones who can be charged with and proven to be guilty under the provisions of the existing criminal justice system and its forensic requirements — roam free or occupy unassailable positions in Parliament, and are also aided in looting and scooting. Their victims constitute the vast majority that is excluded from their nation.

The masterminds of Gujarat 2002 are another case in point — or the recent shameful case of the Delhi police refusing to take action against the men who assaulted students, teachers and journalists on the premises of the court, despite having incontrovertible proof against them.

Read | BJP says wont ‘tolerate criticism of the nation’

Today, duty to the nation essentially means being dutiful to this privileged minority, and it is this minority that threatens to wreak terrible vengeance against all who reject it, challenge it or even question it. Its privilege gives it enormous power, and it is demonstrating that enormous power through irresponsibility and unaccountability.

Today, India is re-living the profoundly ironical truth of the old adage ‘patriotism is the last refuge of the scoundrel’. Today, it is the very idea of India that is being contested in the debates over the crime of being anti-national.

Karen Gabriel is associate professor, St Stephen’s College, New Delhi and PK Vijayan is assistant professor, Hindu College, New Delhi. The views expressed are personal.