Author – Chandrika Singh
What sin does a colonial legacy which, in its reason, believes that people are bound to feel affection for the state, and should not show any enmity, contempt, hatred, or hostility towards the government established by law, have in a modern democratic state like India? This question lies at the heart of this article, which examines how such laws impact the ability of citizens to freely express themselves and limit the ability to constructively criticize or manifest dissent against the government.
Thomas Paine in his response to the charge of ” seditious libel” after brought against him after the publication of ” The Rights of Man” said that if, to expose the fraud and imposition of monarchy, to promote universal peace, civilization, and commerce, and to break the chains of political superstition, and raise degraded man to his proper rank; if these things are libelous, then let the name of libeller be engraved on my tomb.
Sedition entailed in Section 124A of the IPC as it stands today states that 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 established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or without fine.
What one can see clearly is that the words used are in themselves per se vague and can lend themselves to various interpretations and this gives a lot of discretionary power to anybody who wants to use the provision to allege that the offense has taken place. Its vagueness leads to this large gray area, where one might mean one thing which could be construed as another by someone and that may lead to the lodging of the FIR. Governments change, parties come and go but Sedition remains! It is used by governments from all sides of the aisle with equal impunity.
The offence is cognizable, non-bailable, non-compoundable. It is a part of Chapter 6 of the Indian Penal Code, which is a chapter that deals with “Offences against the State” such as waging war, conspiracy to wage wars, all acts which have a propensity for violence. Not only the commission of a seditious act but even an attempt to do so has been made punishable.
Tracing the historical background and evolution of draconian relic-
Originally, Sedition was Section 113 of Macaulay’s Draft Penal Code but it was omitted from the Indian Penal Code enacted in 1860, but, meanwhile, in and about 1870, the Viceroy Lord Mayo got assassinated and subsequently, sedition was brought in. It got amended to a large extent in 1898 when it came in its current form by the British government which was in power not by Law but by sheer force. The framework of this section was taken from various sources like the Treason Felony Act (operating then in Britain), the English law relating to seditious libel. The Wahabi Movement, basically an Islamic movement that was played a significant role during and after the revolt of 1857, needed to be curbed by the colonial regime to which sedition came as a rescue. The first trial for sedition was Queen Empress vs Jogendra Chander Bose &others, commonly termed as Bangobasi case of 1891.
The use of the word ‘Seditious’ was widely debated in the Constituent Assembly, some like Sardar Vallabhai Patel and C Rajagopalachari supported including it, others like KM Munshi, Somnath Lahiri opposed it. Consequently, it was removed from the Constitution but not from the IPC, where it still remains and is used often misused.
On the infamous conviction of M.K Gandhi, he famously said that section 124A, under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law. In India, we have the cases of Bal Gangadhar Tilak, Aurobindo Ghosh, Annie Besant, Maulana Abul Kalam ‘Azad’, Mahatma Gandhi, Arun Jaitley, Amir Khan, Kanhaiya Kumar, Umar Khalid, Arundhati Roy, Aseem Trivedi, Andrew Sam Raja Pandian, Dhaval Patel, Amulya Leona Narohna, Disha Ravi, among others.
Relevance of this draconian diktat-
Way back in 300 BC in Athens, Socrates taught the youth of Athens to question and this did not go down well with prevalent powers because naturally, the authorities do not like to be questioned. Hence, he was charged with corrupting the youth, practicing religious novelties, and neglecting the gods of Greece at that time. He denied all the charges, failed to convince the jury, therefore, the punishment of death was imposed upon him. While his trial he made a statement, “I’d rather die having spoken after my manner than to speak in your manner and live.” Likewise, Disha Ravi, the climate activist, who was recently charged with sedition, criminal conspiracy, and inciting to riot said in the Court of law that if talking about farmer’s protests is seditious then I’m better off in jail. She was later granted bail, however, many such people like her still languish in jail.
John Stuart Mill, in his theory of Utilitarianism, talks about the importance of Freedom of speech and expression. In India, where we are entitled to this as one of the fundamental rights under Article 19 which enables us the right to question, debate, confer, and the right to disseminate ones own thoughts, however, it is accompanied by reasonable restrictions under Article 19(2) of the Indian Constitution. Sedition, on the other hand, enshrined under Section 124A of the IPC 1860, is a colonial tool of ancient vintage. The statute of Westminster in Great Britain in England in 1275, when there was the concept of Divine Rights and rule of Kings passed this because that was a purely feudal society. The pertinent question we need to ask ourselves today is how relevant is sedition in a country which is a democratic republic, where the only sovereign is the citizens of India.
Lord W.E Deming in England in 1984 said that the offence of sedition is now obsolete. It used to be defined as words intended to surrept violence i.e disorder by invoking feelings of hostility between different classes of his majesty and subjects but this definition is too wide, it would restrict too much the free, and flow of discussion of public affairs.
It would be criminally unjust to not discuss the landmark Kedar Nath vs State of Bihar 1962 Case, where he was convicted of Sedition for making an anti-government speech, the Supreme Court upheld the conviction saying that the words spoken by him were aimed at creating disorder by violent means but also added that just arousing bad feelings against the government or writing strong or writing strong criticism of the government cannot be considered Seditious. In Balwant Singh And Anr vs State Of Punjab,1995 and Bilal Ahmed Kaloo vs State Of Andhra Pradesh, 1997, they were raising slogans against the government of the day, where the Supreme Court held that mere raising of slogans is not enough to invoke the offence of sedition yet in as recent as 2020, Amulya Leona Narohna, an activist, was put in custody for the same for weeks before she got bail.
The implication of a colonial legacy to curb free speech-
Going by the NCRB data, there have been as many as 47 cases in 2014, 30 in 2015, the numbers grow up to 70 in 2018, and in January 2020 we had about 3K people protesting against the CAA all slapped with sedition. In 2016 we had only 4 convictions, then how is this progressive in any manner? Meanwhile, the NCRB in 2017 had generated a category of cases related to “Anti-national elements” who are categorized as Northeast insurgents, jihadi terrorists, Naxalites, and other terrorists, and 1012 cases were registered against these categorize in 2018 alone. The fact is that we as Indians are rather thin-skinned, we take umbrage too early, and sometimes the opprobrium of a functionary is treated as a personal attack, things which should rather fall in the domain of defamation are treated as seditious activities.
The Constitutional monarchy, where this devious law originated has done away within 1977. It was noted that sedition is an archaic offence from a bygone era when freedom of expression was not seen as a right as it is today. The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which are actively used to clamp down on political dissent and restrict freedoms, abolishing these offences will allow the UK to set precedence in challenging similar laws in other countries where they are used to curb free speech.
In this day and age, when we have the fifth limb of Democracy coming to light, the Social media, where the dissemination of news is rampant, though not always accurate, that we no longer depend on the traditional mechanisms of information like electronic media or print media. This overuse of social media for the barrage of information has almost led to an “unfettered information revolution” of sorts, therefore does it make any sense to retain this Vieux jeu relic to prosecute every second individual in our globalized society.
George Orwell rightly put it, “If liberty means anything at all, it means the right to tell people what they do not want to hear.” Umpteen self-proclaimed “nationalist” journalists say that Nation comes first. While I completely agree, the definition of that nation has to come from its citizenry and its Constitution. Subsequently, should Section 124A or the Sedition Law be repealed? The answer to that in sooth depends on you and the kind of freedom you prefer. We must endeavor to create a society where it is conceded that no idea is beyond scrutiny and no person is beneath dignity.
Author Chandrika Singh is a first-year Law student at Amity University, Lucknow, takes a keen interest in socio-politico-legal matters.