To students of social science disciplines like Political Science, the concepts of procedural and substantive justice must already be quite familiar. To those who are not familiar with the ideas, let me just give a brief introductory idea. Procedural justice basically refers to the universalized, standard protocols; the sets of obligatory formal rules and regulations that a citizen needs to abide by under the institutions of democracy like court of law, police, and judiciary, executive and so on. It would be implied that procedural justice has been delivered if all the formal rules have been properly followed. It does not care about the outcome. Substantive justice on the other hand, looks precisely at the outcome and proceeds to arrange institutions of justice delivery in such a way so that the most desirable (equitable) outcome is achieved. In other words, substantive justice would mean justice for those oppressed on the basis of caste, class, gender, nationality and so on.
With this brief introduction, now let us come to the case of the JNU students who are being charged with sedition. If we look at the dominant discourse, which constitutes arguments from both sides – i.e. either of those who support the slapping of sedition charges against the students who are associated with allegedly “anti national” slogans and those who oppose these charges, we will find that either side is arguing along “constitutional rights or obligations”. While the former are referring to those sections which say that any activity that aims to endanger the “integrity” of the nation should be deemed criminal, the latter are arguing that the targeted students never raised “anti national” slogans in the first place.
It may be worth noting that using a constitutional or legalistic argument for defending the students being slapped with sedition charges is self defeating for those fighting on behalf of the powerless or oppressed. The constitution or the institutions of procedural justice are largely in the hands of the powers that be. The powerful will either amend or distort the provisions of these legalities to sway the case in their favor. And who are the ones in power? A pro-capitalist, Brahmanical, patriarchal force with a brazenly Hindu nationalist slant. Given the nature of the status quo, it is quite understandable that the formalities of procedural justice can and will be distorted to suit the specific agendas of the powerful. Are we not seeing this happening almost on an everyday basis, from the formal rights of adivasis being denied to workers not getting their dues? It is precisely because of this reason that well meaning, democratic and progressive minded persons of this country need to stop resorting to constitutional arguments; rather, they should appeal to the moral senses of fellow countrymen and indeed fellow humanity – to actually apply the higher principles of substantive justice when opining on the matter.
Many are defending the students who have been targeted under “sedition law” with the argument that they have not uttered anti-India slogans but some “fringe elements” or outsiders have done so. Is this the right way to defend the students? By classifying slogans like “Kashmir maange Azaadi” as “anti India”, and by distancing themselves from those who raised such slogans, are they not contributing to the marginalization of those holding the view that even though demanding Kashmir’s independence may not be permissible within the ambit of procedural justice, it may be perfectly justified from the point of view of substantive justice? Substantive justice should be the guiding principles based on which the formalities of institutions should be set. The notion that the constitution or the laws of the land must always be upheld as sacred and beyond questioning needs to be challenged.
The freedom of speech argument is a strong one, I believe. Even if you personally don’t agree with a slogan, as long as it is not calling for directly causing physical harm or carrying out terrorist attacks, you should uphold the right of others to express that opinion. A great many people in the valley of Kashmir consider the place to be “India occupied territory”. There is mounting evidence of the excesses of the physical forces of the Indian state in the valley. Why should we not allow a healthy debate to foster as to whether they should be allowed to secede? I already argued that upholding right to self determination would be consistent with the principles of substantive justice, but even if one disagrees with that position, at least from the point of view of freedom of expression, people should not have a problem with those taking such a stance. But here again, I would request the defenders of free speech to exercise caution, because many of them are using the logic of constitutional provision here also. Let us not forget that within the constitution itself, there is ample scope of restricting freedom of speech citing exceptions. In this case, if one argues that raising pro-Kashmir-azaadi slogans is threatening the integrity and sovereignty of the country, there is every possibility the institutions of procedural justice will rule against anyone raising such slogans.