Eminent personalities such as former Attorney General Soli Sorabjee, senior Supreme Court advocate Fali Nariman, constitutional expert PDT Achary, writer Mridula Garg and others share their views on the law of sedition.
Any country carrying a law of sedition on its statute books has no right to claim that its citizens possess the right to freedom of expression. Even Britain, who once imposed it on India, has repealed it. A foreign government needs it to prevent the enslaved from forming a democratic republic. But the Indian government has different reasons – not because it’s a colonial legacy but because it suits the temperament of our governance. Successive governments in India in the last six decades have proved that freedom of expression is not something they genuinely believe in. They only barely tolerate it in the name of democracy and the Constitution. Any excuse is seized to curb it.
The imposition of the Emergency banning all freedom of expression was an extreme step, but at least it was an overt one. The law of sedition is more insidious, hence more dangerous. It provides the government with covert means to create Emergency-like situations, that too with no warning. It is a measure of extreme repression.
The JNU Students’ Union President Kanhaiya Kumar is not the first one to be charged with sedition for allegedly raising anti-government slogans or inciting others to do so. Even though the law of sedition is expressly against violent action and not mere sloganeering, no government has respected that. Moreover, each government has acted time and again under the presumption that the government and the nation are synonymous, which they most certainly are not. The nation also consists of people outside of the government, whom the government merely represents for a prescribed period of time.
When the government is disposed towards curtailing the free flow of expression, it is ready to use any excuse to do so. The law of sedition makes it easy to club anti-government utterances with anti-national intentions. Intention is all that can be seen in expressions of dissent, however violently phrased. Verbal violence can be construed as criminal only if it is proven to lead to acts of actual physical violence, not because someone in the government thinks it might do so at some future date. A government that is ready to wreak havoc upon autonomous institutions of higher learning through police action can itself be held guilty of inciting violence. In as much as violation of the autonomy of such institutions is violation of democracy, can it not be fairly said that it is anti-national?
The Indian constitution guarantees us a democracy. If to violate this democracy and hence the constitution is not anti-national, then we need to rethink the meaning of the word ‘nation’.
Constitutional jurist and senior Supreme Court Advocate, writing in The Indian Express
… “sedition” in India is not unconstitutional, it remains an offence only if the words, spoken or written, are accompanied by disorder and violence and/ or incitement to disorder and violence. Mere hooliganism, disorder and other forms of violence, though punishable under other provisions of the penal code and under other laws, are not punishable under Section 124A of the penal code. Likewise, mere expressions of hate, and even contempt for one’s government, are not sedition. When a person is dubbed “anti-Indian”, it is distasteful to India’s citizenry, but then to be “anti-Indian” is not a criminal offence, and it is definitely not “sedition”. (It only means that you are a freak, and that it is high time to have your head examined!)
Citizens in India are free to criticise their governments at the Centre or in the states — which they do quite frequently, and boldly and fearlessly as well; as they must, because that is what a participatory democracy is all about. It behoves the men and women of the law who advise government to impress upon their client that freedom of speech and expression is a fundamental right guaranteed under Article 19(1)(a) of the Constitution — and to remind all governments (present and future) that “sedition” had been deliberately and designedly excluded by the framers of the Constitution from Article 19(2), the exception clause to free speech, only because, as the founding fathers had said, “Sedition is not made an offence in order to minister to the wounded vanity of governments!”
Former Attorney General of India, in an interview to The Indian Express
What did [Kanhaiya Kumar] do? Did he merely shout slogans like ‘Pakistan zindabad’? Arresting him for that? I mean that’s deplorable. That is not sedition. Sedition, the Supreme Court has said, are the acts which have a tendency and intention to disturb law and order or incite violence. After all, it is a section which gives you life imprisonment, has very serious consequences. So the Supreme Court has construed it in that fashion and said it very clearly that even if you use words that vigorously criticise the government or comment on the actions of the government, that is not sedition. That is our law, that is how Section 124A was interpreted and upheld as constitutional by a Constitution Bench.
Advocate and co-founder of Bangalore Alternative Law Forum, writing for The Wire
It is abundantly clear that freedom of speech and expression within the Indian legal tradition includes within its ambit any form of criticism, dissent and protest. It cannot be held hostage to narrow ideas of what constitutes “anti national” speech and we hope that the courts will step in not merely to defend free speech but also pass strictures on those who abuse the legal process to create a chilling effect on constitutional rights. This is particularly important in the context of the ongoing case against the students of Jawaharlal Nehru University because if free speech and thought is curtailed within universities, we run the risk of endangering one of the most crucial spaces of political freedom in the country.
Advocate, writing in The Times of India
The genealogy of the colonial hand-me-down [of sedition], as a tool of suppression, is clearly contrary to even remote concepts of democracy and ought to have been discarded with the empire. Substitution of “Her Majesty” with “government established by law” did not take away the oppressive flavour but has in fact lent itself to further abuse. “Government” and “Nation” neither mean the same nor are they interchangeable. A nation is distinct from the persons administering it i.e., the government, vested with powers and duties to ensure cohesive functioning of the nation.
Constitutional expert and former secretary general of the Lok Sabha, writing in The Hindu
Sedition defined under Section 124A of the IPC is a colonial law meant to suppress the voice of Indian people. That is why the Indian law on sedition was different from the English law. Despite the strict construction adopted by the Supreme Court, the law enforcement agencies have always used it against artists, public men, intellectuals, et al for criticising the governments. In fact the Supreme Court itself did not apply these strict principles to the speech of Kedarnath and his conviction. The government and its agencies have, in reality, followed the law enunciated by the Privy Council and not by the Supreme Court in Kedarnath. The governments in free India continue to use it for the very purpose for which the colonial government used it.
Therefore, since the governments and its agencies have strictly gone by the text of Section 124A though the Supreme Court itself did not apply these principles to the speech of Kedarnath, the law declared in Kedarnath has lost its potency. The Supreme Court, being the protector of the fundamental rights of the citizens may step in now and declare Section 124A unconstitutional. India of the 21st century does not require a law used by the colonial government to suppress India’s voice.
Associate Professor of Law at National Law University Delhi, writing for IBNLive
Our Sedition law is archaic and draconian. It was introduced by the British to keep leaders like Mahatma Gandhi in jail. Mahatma Gandhi wanted the Independent India to abolish the Sedition law. Unfortunately, we still have it. We are continuing it with even after so many years. Sedition law is a weapon in the hand of the state. It can be misused by the state in many ways. If somebody is charged with sedition, it will take a long time to get the bail and come out. The punishment is also very harsh.
Article 19(1) of the Constitution of India guarantees to all citizens the right to freedom of speech and expression. Article 19(2) makes public order a ground, among others, for restricting freedom of expression. However India’s Supreme Court has ruled that such restrictions must be authorized by law and must not be excessive or disproportionate. The Court has also ruled that restrictions relying on the ground of public order are valid only when there is a close connection between the speech and public disorder, and there is an imminent threat of lawlessness.
… However the law continues to be used to suppress critics. Successive governments in India have deployed it against journalists, activists and human rights defenders. In 2015, the law was used to arrest a Dalit folk singer in Tamil Nadu for songs criticizing the state government, and a community leader in Gujarat protesting for quotas in education and employment.