The almost simultaneous entertainment by three benches of the Supreme Court of petitions seeking declarations that Section 124A of the Indian Penal Code is unconstitutional indicates that the apex court finally realises that sedition is a draconian provision and needs to be done away with.
It is welcome because if the petitions succeed, a colonial provision designed to crush nonviolent social movements against the British Crown, which is now being used to suppress democratic dissent in an independent country, will go, making prosecutions for free speech difficult. Thousands, including the CAA protestors and the tribal supporters of the Patthalgadi movement, journalists, artists, farmers, trade unionists, students and others will have the yoke of this oppressive provision lifted.
The Kedar Nath vs State of Bihar decision was delivered in 1962 and was an excellent pronouncement, except for one fatal defect. This decision held that the judgments of the Privy Council concluded that mere words were enough to convict under the section and that violence was not an essential ingredient of the offence of sedition.
It read into the section the requirement of large-scale breaches of law and order following the offending words. Thus, the Supreme Court was right in its analysis but wrong in the medicine it prescribed. In not declaring the section unconstitutional and not striking it down altogether, thus removing it from the statute books, the Supreme Court made a fatal mistake. One must understand this through the eyes of a policeman at a police station.
His Bible is the latest edition of the Indian Penal Code. When he opens it to 124A, 60 years after Kedar Nath, he finds the section staring at him with all its venom:
“Whoever by words, signs, visible representation brings into hatred or contempt or excites disaffection against the government shall be punished with imprisonment for life”.
Had Kedar Nath struck down the provision, it would have disappeared from the Code. By reading into the section an additional requirement, it was almost like parliament expecting every policeman in the country to read and understand Kedar Nath and interpret the section accordingly. This elementary mistake resulted in hundreds of prosecutions being instituted every year against people guilty of no offence except nonviolent protests against the tyranny of the Union.
This point was pressed home by the Supreme Court in two cases. In Balwant Singh’s case, a pro-Khalistan agitator passionately called upon Sikhs to struggle by use of arms to carve out a separate state in India. No violence followed and he was acquitted for his mere words.
In Bilal Ahmed Kaloo’s case a similar call for azadi by use of arms without any violence ensuing resulted in acquittal. The Supreme Court emphasised that large-scale violence was a necessary ingredient of sedition. This had no effect on prosecutions by the police for mere free speech. Kishore Chandra, the journalist from Manipur who used an expletive against the chief minister, spent a year in jail before he was released on bail.
The Union was proud to retain this weapon of the war against the people and refused to repeal the section, even though the UK government, from whom we inherited this law and many other countries, repealed its sedition law decades ago. I am absolutely certain that the law officers of the Union will, when these matters are taken up for hearing in the Supreme Court, put up a strenuous defence.
In 1922 when Mahatma Gandhi was charged under the section, he remarked, “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 citizens.”
Let us hope that the Supreme Court will now take up with alacrity the other provisions of law such as criminal defamation and the infamous Unlawful Activities Prevention Act, which deserve to be put in the dustbin of history. Before that is done, however, judges have to introspect on the tolerance of tyranny, which is so prevalent in our country.
Colin Gonsalves is senior advocate, Supreme Court of India, and founder of the Human Rights Law Network.