Disagreement is an inherent feature of a democratic society. Democracy does not merely mean the right to vote or the periodic election of governments. It also includes the freedom to question authority, criticise government policies, challenge majoritarian views, express unpopular opinions and demand accountability. The constitutional legitimacy of a democratic government depends, to a significant extent, upon its ability to tolerate disagreement.
In recent years, however, concerns have increasingly been raised regarding the treatment of political dissent, criticism of government policies and expressions of unpopular ideas in India. Terms such as ‘Urban Naxal’ and more recently ‘Dimaagi Naxal’ (intellectual Naxal) have entered public and political discourse to describe persons or groups allegedly perceived as hostile to the State or its ideology. Such terminology raises an important constitutional question: When does criticism of the government cease to be protected and become a punishable offence?
The issue becomes particularly significant when writers, journalists, academics, lawyers, students, activists and political opponents are portrayed as threats merely because of their opinions, writings, associations or criticism of governmental policies. The controversy surrounding the Bhima Koregaon investigation and the arrests of several academics, lawyers and activists illustrates the wider debate concerning the relationship between national security, criminal law and freedom of thought and expression.
The central question is that, whether every act described as dissent is constitutionally protected or not? Democratic freedoms are subject to reasonable restrictions, and acts involving violence, incitement to violence, terrorism, conspiracy or other offences may legitimately attract criminal liability. The fundamental question, therefore, is where the constitutional line should be drawn between protected disagreement and punishable conduct.
Dissent or Crime?
The Constitution guarantees freedom of speech and expression under Article 19(1)(a), subject to the reasonable restrictions enumerated under Article 19(2). The constitutional framework therefore recognises both the importance of free expression and the legitimate interests of the State.
The difficulty arises when government authorities characterise particular ideas, opinions, associations or forms of criticism as ‘anti-national’, ‘extremist’, ‘Naxal’, or otherwise dangerous. If such labels influence criminal investigation or prosecution without sufficient evidence of an identifiable unlawful act, there is a potential danger that thought, ideology or disagreement itself may become the basis for criminalisation.
Traditionally, criminal liability requires a person to commit a prohibited act, along with the required intention or mental state, where necessary. But the concern is that when the executive or political system uses such labels and broad claims of national security inappropriately, it can blur the important distinction between what a person thinks, what a person says, and what a person actually does.
In today’s India, we need to ask ourselves a simple but important question: Have we started treating disagreement as a crime? In a democracy, a citizen may disagree with the government, question its policies, criticise its decisions, or express an unpopular opinion. But when words such as ‘anti-national’, ‘anti-government’, or ‘threat to national security’ are used too broadly, the line between genuine wrongdoing and legitimate criticism can become blurred.
So, where should we draw the line? When does criticism become an offence, and when is it simply the exercise of a constitutional right? If people begin to remain silent because they fear criminal action merely for expressing a different opinion, what happens to freedom of speech, democratic debate and the very idea of dissent?
Constitutional and Legal Framework
The Constitution provides important safeguards for dissent and disagreement. Article 19(1)(a) guarantees freedom of speech and expression, while Articles 19(1)(b) and 19(1)(c) protect peaceful assembly and the right to form associations. Article 14 guarantees equality before law, and Article 21 protects life and personal liberty. At the same time, Article 19(2) permits reasonable restrictions on speech on specific grounds such as sovereignty and integrity of India, security of the State, public order, defamation and incitement to an offence.
Certain criminal laws, including the UAPA 1967 and relevant provisions of the BNS 2023, may legitimately apply where conduct genuinely threatens national security or public order. However, their application must be distinguished from peaceful criticism or disagreement.
In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court upheld the sedition provision but clarified that strong criticism of the government would not constitute an offence unless accompanied by incitement to violence or a tendency to create public disorder.
Similarly, in Vinod Dua v. Union of India (2021), the Supreme Court quashed criminal proceedings against journalist Vinod Dua and reaffirmed that criticism of the government, even strongly worded criticism, is protected by constitutional freedom of speech.
These cases underline a fundamental democratic principle: disagreement with the government is not necessarily hostility towards the nation, and peaceful dissent should not be criminalised merely because it is unpopular or inconvenient to those in power.
Dissent and Democracy
Democracy cannot function without disagreement. A government is accountable not only to those who support it but also to those who question, criticise and oppose its policies. Article 19(1)(a) of the Constitution protects freedom of speech and expression, while Articles 19(1)(b) and 19(1)(c) protect peaceful assembly and association. Therefore, criticism of a government should not automatically be treated as criticism of the nation.
The important question is where the line should be drawn. There is a clear difference between criticising government policy, demanding political change, expressing an unpopular opinion, and actually encouraging violence or participating in unlawful activities. Constitutional protection cannot be used as a shield for violence, terrorism or genuine criminal conduct; at the same time, criminal law should not be used merely because an opinion is unpopular or politically inconvenient.
Recent public controversies involving statements by some BJP leaders have also raised questions about this distinction. For example, former BJP spokesperson Nupur Sharma’s remarks concerning the Prophet Muhammad ﷺin 2022 led to widespread controversy, diplomatic reactions and criminal proceedings. Similarly, BJP MP Ramesh Bidhuri’s remarks against BSP MP Danish Ali in Parliament in September 2023 attracted strong criticism and demands for action. These incidents demonstrate how political speech can become deeply provocative and potentially harmful to public discourse.
The issue, therefore, is not which political party a speaker belongs to. The same constitutional standard must apply to everyone – government supporters, opposition leaders, MPs, MLAs, journalists, activists and ordinary citizens. Democracy becomes weaker when criticism is criminalised, but it also becomes weaker when provocative speech that crosses into unlawful incitement is ignored.The real test is whether the expression remains protected dissent or crosses the legal threshold into incitement, violence or other identifiable unlawful conduct.
Urban Naxal and Dimaagi Naxal: Political Labels
Terms such as ‘Urban Naxal’ and ‘Dimaagi Naxal’ have increasingly appeared in Indian political discourse to describe writers, activists, academics, journalists and others who are portrayed as supporting opposition to the government, questioning the ruling establishment, or criticising government policies. Such terminology raises serious questions when political disagreement is presented as evidence of extremist or anti-national thinking.
[advmdzahidfalahi@gmail.com]
Scan to Read in Full