SACK THE SEDITION

“Affection cannot be manufactured or regulated by the law.”[1]

Mahatma Gandhi,1922

These landmark words were uttered by Gandhiji in a different era 98 years ago. However, it eerily rings a similar bell today. The law in question deals with sedition, which remains a controversial piece of legal mechanisms. The essay will critique sedition’s existence in India concerning Section 124A of the Indian Penal Code (IPC) (1860). Additionally, it would provide an insight into the converse of criticism, reflecting on the law’s significance. Lastly, the essay will conclude on the way forward regarding the law and other reflections considering the same.

The choice to pick Section 124A is crucial, as it defines the offence of sedition and has become synonymous with the term itself. The British Raj introduced Section 124A in 1870, and it was inserted in Chapter VI of the IPC, which dealt with offences against the State. Presently the Section, with its explanations, is as follows:

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 shall be punished with imprisonment for life, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this Section.

Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this Section.[2]

Apart from Section 124A, the following laws also enforce against offences related to sedition:

1. The Code of Criminal Procedure, 1973 – Section 95

2. The Seditious Meetings, 1911

3. The Unlawful Activities (Prevention) Amendment Act, 2019[3]

(Source: Open Law Lab)

One of the main criticisms of Section 124A is that it is a relic of the British Raj. The colonial government that lasted for roughly 190 years introduced the Section to curb the growing dissent against them. It is observed that some of the most famous trials of pre-independent India came under this law. Beginning with Bal Gangadhar Tilak’s sedition trial in 1897 (acquitted in 1898), Annie Besant and Mahatma Gandhi (convicted in 1922)[4], it continued to haunt those who voiced their opposition to the colonial administration.

When the matter of sedition came to post-Independent India, political stalwarts like Pandit Jawaharlal Nehru and KM Munshi advocated its discontinuation. Pandit Nehru thawed the existence of Section 124A by stating this in the Lok Sabha in 1951:

“Take again Section 124A of the Indian Penal Code. Now so far as I am concerned that part is highly objectionable and obnoxious and it should have no place for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.”[5]

Alongside politicians, certain judges also advocated for its removal. For instance, Justice Rajindar Sachar criticised it by calling it “archaic” and unfit in a post-independent India context. As the law was introduced in a distinct historical context, with a distinct purpose, by a foreign government on its alien subjects, it does not hold much relevance in an India that intends to leave the controversial elements of its colonial past as soon as possible.

The other crucial point of contention regarding sedition is its ability to curb freedom of speech and expression. Under Article 19 of the Indian Constitution, the Right to Freedom of Speech and Expression is a fundamental right, alongside other rights mentioned in the same article. It also happens to be of the most significant rights in the Universal Declaration of Human Rights, 1948[6].

For any democracy to function to the best of its capacities, its people must be able and willing to express either appreciation or rebuke towards the government on any issue or policy. Etymologically, the term “sedition” came from the Latin word – Sedition, which was inferred to mean the following at various points in history: an Insurrectionary Separation (Political or Military), Dissension, Civil Discord, Insurrection and Mutiny[7]. All these terms (except for civil discord) exhibit the tendency of oppression by the governing, on the governed.

(Source: Open Law Lab)

Following is a list of prominent individuals alongside their professions, and ironically, the commonality that binds them together is that all of them have been charged with sedition (rather unfairly):

1. Arundhati Roy, Author[8]

2. Aseem Trivedi, Cartoonist[9]

3. Late Arun Jaitley, Politician[10]

All these individuals and many more were charged with the same offence, with these individuals having no intention to commit what the Section charged them for. Most of the individuals charged under this Section are academicians, authors, and intellectuals who voice their opinions against the government.

My final criticism is that the Section undermines democracy itself. India stands in league with countries like Saudi Arabia and Malaysia. Surprisingly, the United States of America, supposedly the ‘beacon of democracy’ is also on this dubious list. However, it is not merely the number and kind of countries that have this provision.

While the government might consider the views expressed as unreasonable or uncharitable, these cannot be inferred into criminalising individuals. As rightly pointed by Mahatma Gandhi, no amount of laws can generate favour for the government until and unless that appreciation comes from your conscience. Moreover, he also postulated that if one’s conscience prompts them to speak out against the ‘establishment,’ it is their right to object to their fullest capacity, as far as their words and thoughts do not convert into violent activities.

Since 2014, roughly 326 individuals have been charged with sedition, with 93[11] cases in 2019 alone. In a democracy where these cases should be exceptional, they have, unfortunately, become the norm. If India really wishes to be a democracy ‘of the people, for the people and by the people’[12], then it really needs to consider its stand on sedition.

Considering all the criticisms, there are substantive arguments on the other side, i.e. to keep Section 124A. Even in the Constituent Assembly, members like Jadubans Sahay supported the retention of sedition in the books of law, though his comprehension of the law was exceptionally justified. He considered the law to be used in rarity, not in common parlance.

Furthermore, the retentionists often take the support of the Kedar Nath Singh Judgement, which upheld the constitutionality of the Section while strictly limiting its scope of implementation. In the judgement, the court said the following:

“A citizen has the right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public order.”[13]

Taking a cue from the judgement, a plausible explanation of retaining the Section might come from the observation that certain kinds of words are inherently dangerous. Henceforth, those uttering such words become liable to punishment even in anticipation of the consequences. As Indian society is volatile where each controversial word might lead to disastrous effects, it becomes crucial for the government or the police to intervene before lives are lost.

While the side of sedition projected is always that of a draconian law, it is undeniable that the law if interpreted in consonance with the IPC and past judgements, had the potential of protecting the citizens against loss of life and property. From 1970 to 2000, India saw a spike in secessionist tendencies in the North (Jammu-Kashmir and Punjab), the East (The Naxalite Movement) and the North-East (Manipur, Tripura, and Meghalaya).

In a country that has been scarred with political assassinations as recent as 2013 (Sukma, Chattisgarh), the retentionist justify the law’s existence in the line of keeping the Indian State and its respective governments in stability.

In my opinion, one of the fundamental misconceptions in understanding section 124A’s implementation is the relationship between the State and the government. The reason is simple; the State and the government are synonymous with the Indian polity, which is deeply permeable with the society. Thus, what should be an offence (if at all it is an offence) primarily against the Constitution of India (my understanding of the State) actually becomes an offence against the Legislature and the Executive.

Put in the Judiciary in the process, and all of it becomes highly arbitrary, as the final decision of charging an individual with sedition finally rests with the local magistrate. Unfortunately, the separation between the three branches of our democracy is not as was envisioned by the Constituent Assembly. The magistrates and judges are lured with post-retirement positions from the Union and the state governments. Moreover, should they decide to follow the legal precedent, they are often intimidated either through the governments or their own seniors.

For those who fear the scenario of anarchy in India, that is less than likely to happen, as there are laws existent to deal with such situations in particular. Other laws counting as an offence to the State can be strengthened to compensate for the removal of Section 124A. Additionally, the reasonable restrictions[14] imposed under Article 19 of the Constitution is comprehensive enough to replace the Section ably. Ultimately, the galvanisation of public opinion should be encouraged to make abolition acceptable to a sizeable citizenry.

The essay is an attempt to forge in a conversation around sedition, where Indians will form an independent opinion and will express it from the tea stalls to the parliament. With the objections and the contrasting defence presented, the essay also serves as an expression to my reflections on this issue beyond what the conventional academics have laid out so far.

Thus, my perception of Section 124A is that it is not just questionable as a legal provision; it is instead a looming question on the essence of a post-independent constitutional India. If India believes in the words’ DEMOCRATIC REPUBLIC’[15] , then in my view, the law on sedition is a challenge to the very ethos behind these words. Conclusively, as change is the only constant in the world, the change required presently is the abolition of sedition.

In-Text Citations

[1] M.K.Gandhi, Statement in the Trial of 1922,The Complete Website on Mahatma Gandhi, Bombay Sarvodaya Trust, March 18,1922, https://www.mkgandhi.org/speeches/gto1922.htm, (accessed December 17,2020) [2] Govt. of India, The Indian Penal Code, 1860,India Code, https://www.indiacode.nic.in/bitstream/123456789/2263/1/A1860__45.pdf(accessed December 12,2020) [3] Dr. Shilpa N. Gaikwad, “Law Relating to Sedition in India Vis-à-vis Freedom of Speech and Expression: Issues and Challenges”, P.E. Society’s Modern Law College Journal ,Vol.2, Issue 2,2017, Pg.12-16 [4] Ibid. [5] Parliamentary Debates of India, Vol XII, Part II (1951), As cited by Siddharth Narain,’Disaffection’ and the Law: The Chilling Effect of Sedition Laws in India, Economic and Political Weekly, February 19-25, 2011, Pg. 35 [6] United Nations, Universal Declaration of Human Rights,1948, https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf, (accessed December 16,2020) [7] Abhishek Sharma, “Sedition – Threat To Free Speech In Democratic Society”, International Journal of Law Education, Social and Sports Studies, Vol.6, Issue 1, 2019, Pgs. 37-44. [8] Press Trust of India, “Sedition Case Registered Against Arundhati Roy, Geelani”, NDTV, November 29,2010, https://www.ndtv.com/india-news/sedition-case-registered-against-arundhati-roy-geelani-440611 (accessed December 15,2020) [9] Jason Burke, “Indian Cartoonist Aseem Trivedi Jailed After Arrest on Sedition Charges ”,The Guardian, September 10,2012, https://www.theguardian.com/world/2012/sep/10/indian-cartoonist-jailed-sedition (accessed December 15,2020) [10] Mohammad Ali, “Sedition Case Against Jaitley”, The Hindu, October 20,2015, https://www.thehindu.com/news/national/sedition-case-against-jaitley/article7781419.ece (accessed December 15,2020) [11] National Crime Records Bureau, ”Crime in India – 2019”,Government of India, https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Table%2010A.2_1.pdf (accessed December 13,2020) [12] Abraham Lincoln, “ Gettysburg Address,1863”, Encyclopaedia Britannica, November 12,2020, https://www.britannica.com/event/Gettysburg-Address (accessed December 18,2020) [13] Justice B.P. Sinha , “Kedar Nath Singh vs State of Bihar”, January 20,1962, Indian Kanoon, https://indiankanoon.org/doc/111867/ (Accessed December 14,2020) [14] Constitution of India, Article 19 (3) [15] Constitution of India, Preamble

Bibliography

Scholarly Articles

1. Chandhuri, J, “Law of Sedition in India,” Juridical Review, Volume 10, Issue 3, 1898: 385-394

2. Gaikwad, Dr Shilpa N., “Law Relating to Sedition in India Vis–A- Vis Freedom of Speech and Expression: Issues and Challenges,” P.E. Society’s Modern Law College Journal, Volume 2, Issue 2, 2017: 12-16

3. Mishra, Aditya Kumar, “Freedom of Press and Laws of Sedition: Towards an Amicable Existence,” Manupatra Articles by students

4. Narayanan, Aishwarya, “A Theoretical Analysis of the Law on Sedition in India,” Christ University Law Journal, Volume 4, Issue 1, 2015: 87-101

5. Rallan, Nirmal, “Sedition Laws in India,” CPJ Law Journal, Volume 5, 2015: 163-171

6. Rathore, Samar Pratap Singh, “Law of Sedition- A Critical Analysis,” Manupatra Articles by students

7. Saksena, Nivedita; Srivastava, Siddhartha, “An Analysis of the Modern Offence of Sedition,” NUJS Law Review, Volume 7, Issue 2, 2014: 121-148

8. Sharma, Abhishek, “Sedition- Threat to Free Speech in Democratic Society,” International Journal of Law, Education, Social and Sports Studies, Volume 6, Issue 1, 2019: 37-44

9. Yagyasen, Sukriti, “Law of Sedition in India: A critical study of its Contemporary relevance and scope,” International Journal of Institutional and Industrial Research, Volume 1, Issue 1, 2016: 41-43

Magazine Articles

1. Narain, Siddharth,” ‘Disaffection’ and the Law: The Chilling Effect of Sedition Laws in India,” The Economic and Political Weekly, February 19-25, 2011, 33-37

2. Sachar, Rajindar, “Repeal the law of sedition,” Mainstream, Volume XLIX, Issue 26, June 18, 2011

3. Singh, Gyanant, “Trial of an Idea: Sedition on Trial,” Governance Now, March 1, 2016

News Articles

1. Mohammad Ali, “Sedition Case Against Jaitley,” The Hindu, October 20, 2015, https://www.thehindu.com/news/national/sedition-case-against-jaitley/article7781419.ece (accessed December 15, 2020)

2. Jason Burke, “Indian Cartoonist Aseem Trivedi Jailed After Arrest on Sedition Charges,” The Guardian, September 10, 2012, https://www.theguardian.com/world/2012/sep/10/indian-cartoonist-jailed-sedition (accessed December 15, 2020)

3. Dantewadia, Pooja; Padmanabhan, Vishnu, “Sedition Cases in India: What Data Says,” Mint, February 25, 2020, https://www.livemint.com/news/india/sedition-cases-in-india-what-data-says-11582557299440.html (accessed December 14, 2020)

4. Press Trust of India, “Sedition Case Registered Against Arundhati Roy, Geelani,” NDTV, November 29, 2010, https://www.ndtv.com/india-news/sedition-case-registered-against-arundhati-roy-geelani-440611 (accessed December 15, 2020)

5. Sriram Jayant, “Should the sedition law be scrapped ?,” The Hindu, March 06, 2020, https://www.thehindu.com/opinion/op-ed/should-the-sedition-law-be-scrapped/article30993146.ece (accessed December 6, 2020)

6. Verma, GL, “In Defence of Sedition Laws,” The Statesman, July 30, 2020, https://www.thestatesman.com/supplements/law/defence-sedition-laws-1502912421.html (accessed December 8, 2020)

Blogs

1. Pattnaik, Ayesha, “The art of Dissolving Dissent: India’s sedition law as an instrument to regulate public opinion,” LSE Blogs, October 4, 2019, https://blogs.lse.ac.uk/southasia/2019/10/04/long-read-the-art-of-dissolving-dissent-indias-sedition-law-as-an-instrument-to-regulate-public-opinion/ (Accessed December 13, 2020)

Court Cases – Accessed from www.indiankanoon.org

1. K.E. v/s M.K. Gandhi, 1920- (1920) 22 BOMLR 368

2. Ram Nandan v/s State, 1958 – AIR 1959 All 101

3. Kedar Nath Singh v/s State of Bihar, 1962 – 1962 AIR 955

4. Bilal Ahmed Kaloo v/s State of Andhra Pradesh, 1997

5. Sanskar Marathe v/s State of Maharashtra, 2015

Legal Documents

1. Constitution of India, 1949, - Accessed from www.india.gov.in (accessed December 18,2020)

2. Indian Penal Code,1860 – Accessed from www.indiacode.nic.in (accessed December 12, 2020)

Miscellaneous Web Sources

1. Lincoln, Abraham, “Gettysburg Address,1863”, Encyclopaedia Britannica, November 12, 2020, https://www.britannica.com/event/Gettysburg-Address (accessed December 18, 2020)

2. Gandhi, M.K., Statement in the Trial of 1922, The Complete Website on Mahatma Gandhi, Bombay Sarvodaya Trust, March 18, 1922, https://www.mkgandhi.org/speeches/gto1922.htm, (accessed December 17, 2020)

3. National Crime Records Bureau,” Crime in India – 2019”,Government of India, https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Table%2010A.2_1.pdf (accessed December 13, 2020)

United Nations, Universal Declaration of Human Rights,1948, https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf, (accessed December 16, 2020)

Cover Image: The Blue Diamond Company

About the author: Pranav Joshi is a first year master’s student of Public Policy . His interest areas are International and National Politics, Government and Governance ,Education policy and Indian culture.