Sedition belongs to an era when the right to freedom of expression did not exist, nor the right to vote in or vote out governments every five years.
- Prasanna Mohanty
- New Delhi
- June 13, 2019
- UPDATED: June 14, 2019 09:24 IST
Misuse of sedition law in India is breathtaking. From slapping it on 68 Kashmiri students in Meerut for cheering Pakistani cricket team in March 2014 to that on 12 Aligarh Muslim University students on a mere allegation of assault by a rival group in February 2019, this law has been used liberally and casually irrespective of the political party in power.
It matters little that sedition charges are seldom held up in court - there were only two convictions between 2014 and 2016 while 179 were booked during the period - or that this law has disappeared or fallen to disuse in other democratic polity. There is a good chance it may actually be made more stringent in India.
Sedition, or Section 124A of the Indian Penal Code (IPC), is wide in its sweep: "Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government..." It is a cognizable (no arrest warrant needed), non-bailable and non-compoundable (no compromise or withdrawal of case is allowed) offence, entailing imprisonment for life and fine, or imprisonment for three years with or without fine.
This article is the tenth in a series that looks at the agenda for the Narendra Modi government's second term. Read the first, second, third, fourth, fifth, sixth, seventh, eighth and ninth part.
Seductive power of sedition
A colonial legacy, Section 124A was introduced in India in 1870 - after the 1857 mutiny - and was "extensively used to curb political dissent in India", says a 2018 Law Commission consultation paper on the subject.
Nevertheless, it found its way into the draft Constitution as a restriction on freedom of speech and expression. The Constituent Assembly was unanimous in opposition and struck it down.
The Law Commission quotes M Ananthasayanam Ayyangar registering his protest by saying that "...it must be the fundamental right of every citizen in the country to overthrow that government without violence, by persuading the people, by exposing its faults in the administration, its method of working and so on...except in cases where the entire state itself is sought to be overthrown or undermined by force...We have gained that freedom..."
KM Munshi, who played a key role in the deletion, is also quoted as saying: "As a matter of fact, the essence of democracy is criticism of government. The party system, which necessarily involves an advocacy of the replacement of one government by another, is its only bulwark; the advocacy of a different system of government should be welcome because that gives vitality to a democracy..."
Talking about it in the Parliament in 1951, Pandit Nehru was even more scathing: "Now so far as I am concerned that particular section (Section 124A of IPC) is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass". Mahatma Gandhi, who like Nehru had faced sedition charges during the British rule, once said this about it: "One should be free to give full expression to their disaffection unless it incites violence."
It is strange this law survived such strong censure.
Kedar Nath Singh judgement of 1962
Post adoption of the Constitution, this IPC provision was once struck down as unconstitutional by the Allahabad High Court in 1958 but the Supreme Court overturned it in the famous Kedar Nath Singh vs State of Bihar case of 1962.
The apex court held its constitutionality but limited its applicability to "acts involving intention or tendency to create disorder or disturbance of law and order; or incitement to violence."
This change in the scope of the law holds true even now, though everyday experiences show continued arbitrariness in its use, necessitating the Law Commission's consultation paper of 2018 mentioned earlier.
What principle guided the Kedar Nath Singh judgement? The judgement itself explains it: "It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction."
Given the fact that sedition was rejected by the Constituent Assembly and finds no place in the "reasonable restrictions" on freedom of speech and expression in Article 19(1)(a) of the Constitution makes the validity of the assertion - "consistent with the Constitution" - highly contestable.
UK strikes it down as obsolete
The UK, from which India inherited the law, abolished it in 2009 saying, "Sedition and seditious and defamatory libel are arcane offences - from a bygone era when freedom of expression wasn't seen as the right it is today" As for inciting violence, it was reasoned that this already was a criminal offence and need no special law.
In the Indian context, the Law Commission paper also lists various IPC provisions to deal with actions threatening peace and public tranquillity, without warranting a separate law. It goes on to say that the US does have such a law but is very narrowly construed and fallen to disuse. Besides, the US Constitution proscribes any legislation curtailing right to expression. In Australia, the term 'sedition' was removed and replaced with references to 'urging violence offences' in 2010.
People of India are sovereign
The origin of the sedition law is traced to the medieval England and reflects a relation between the 'ruler' and the 'ruled'. Explaining the meaning of 'disaffection' used in the sedition law, the Bombay High Court said in 1906 that such a feeling (disaffection) "can only exist between the ruler and the ruled". Further, it defined 'disaffection' to mean "enmity, hatred or hostility or contempt and no doubt include all these". 'Hatred' and 'contempt' also a find place in the sedition law.
But once the Constitution was adopted by the people of India in 1950, 'the ruler and the ruled' relationship changed forever.
The people of India have become sovereign themselves, not 'the ruled' anymore.
All doubts about the status of the people of India were dispelled during the Constituent Assembly debate on the Preamble to the Constitution. The architect of the Constitution, BR Ambedkar said: "Beyond doubt it (sovereignty) vests with the people."
Thus, as sovereign, the people of India enjoy certain fundamental rights which include voting in or out governments every five years and criticise the performance of an incumbent government without being seditious.
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