A Red (Pun Intended) Herring in Court No. 1

ON THE EVENING of March 9, 1954, Edward R. Murrow sat before an American television audience and drew a line that his country, gripped by fear of communism, had begun to lose sight of, when he reminded his viewers that “we must not confuse dissent with disloyalty.” It was the age of Joseph McCarthy and once a man had been placed in the ‘right’ category, there was usually very little ‘left’ to argue about.

Three months later, the method revealed itself in full public view. Joseph Welch was appearing for the United States Army in the hearings that had transfixed the country when McCarthy, rather than meeting the Army’s case, reached for the name of Fred Fisher, a young lawyer in Welch’s firm, and for an old association of his that was said to have Communist links. Welch understood what the mere mention of that name could do to a young man whose reputation had just been carried into millions of American homes, and he asked McCarthy the question that would outlive him: “Have you no sense of decency, sir, at long last? Have you left no sense of decency?” What is worth remembering, however, is not only the question but what had happened just before it, because by then the argument had ceased to be about the issue at hand at all and had become an inquiry into what sort of person stood on the other side.

A singer who asked not to sing

Seventy-two years later, in Court No. 1 of the Supreme Court of India, an argument once again met a label. T.M. Krishna had approached the Court under Article 32 to seek, of all things, the freedom not to sing, by challenging the 2026 amendment to the Prevention of Insults to National Honour Act, 1971 and the Union’s directions requiring all six stanzas of Vande Mataram to be sung. Appearing for him, was Senior Advocate S. Muralidhar. The Solicitor General interjected that law-making happens according to the Constitution and not according to Naxalite’s idea, and when Muralidhar asked him to withdraw the expression, he declined, clarifying that he was referring to an ideology which rejects constitutional decision-making rather than to any individual.

Who walked out of the Constitution?

That clarification, however, leaves a curious question unanswered, which is who in that courtroom had actually abandoned the constitutional method. No one had taken to the forest, no one had set up a parallel court, and no one had claimed a right to make law outside Parliament. A citizen had filed a writ petition, instructed counsel and walked into the Supreme Court to ask three judges what the Constitution permits. He may well be entirely wrong on the merits. But being wrong in a constitutional court is still a constitutional act.

That is precisely what Article 32 was made for, and it is no accident that Ambedkar described it as the very ‘soul’ of the Constitution and its very heart. The provision promises him a door and the right to knock on it, and at that door the Constitution remains magnificently incurious about whether the person knocking is fashionable or inconvenient, majoritarian or marginal, celebrated or obscure. The question inside the courtroom is meant to concern the right that is being asserted, not the respectability of the person asserting it. Justice Joymalya Bagchi placed the matter on firmer ground still when he observed that even a person alleged to be a terrorist does not shed his constitutional rights and must be tried according to law, and asked, in substance, why else people would come to constitutional courts rather than to kangaroo courts. There is something almost elementary about that answer, and it is elementary because the Republic has met the dissenter before.