Recent complaints of sedition against actress Ramya and Amnesty International India have once again brought to the centre stage the debate around what is legitimate dissent and when free speech becomes “anti-national” or even “seditious”.
Specifically, the debate around the legitimacy of at least three types of dissent is of significance.
First, when a policy, action or agency of the government is criticised. This form of dissent is the essence of democracy and is, in fact, an important function of the opposition parties and journalists. It would be difficult to find an Indian who hasn’t, at one time or another, critiqued the government. Such criticism draws attention to the malfunctions of the state – without which the state would remain ignorant of the views of the people. The “emergency” in the 1970s amply demonstrated the political dangers of such ignorance of the ruling dispensation.
Ironically, Section 124A of the Indian Penal Code, commonly referred to as the sedition law, proscribes this type of dissent by criminalising any speech, written word or sign that raises hatred, contempt or excites “disaffection” towards the government. This anachronistic law, introduced by the British and extensively used by the colonial rulers to crackdown on dissent, continues to find a place in our statute books.
Despite the judgement by a constitutional bench of the Supreme Court, in the 1962 case Kedar Nath Singh vs State of Bihar, that limited the application of Section 124A to “…acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence,” the law has been repeatedly used to harass people who criticise the state or express views contrary to that of the government on issues ranging from nationhood to specific policies – even where such acts do not incite violence or create public disorder.
The most recent example is that of the FIR filed by the Bengaluru police against Amnesty International India on the basis of a complaint by the ABVP after azaadi slogans were raised by some Kashmiris at an event organised by it as part of a campaign to seek justice for victims of human rights violations in Jammu and Kashmir.
The severity of punishment imposable under section 124A, including that of life imprisonment, has a negative impact on free speech, making it a potent weapon in the hands of the state for quelling dissent and criticism.
The second type of dissent involves criticism of the nation – saying, for example, that India is unsafe for women, that minorities are unjustly treated in the country or that the powerful exploit the weak in India. Prime Minister Narendra Modi, in his recent address to the executive committee of the BJP, condemned this type of dissent and reportedly said that his party and the government “was accepting of political criticism of itself, but not of the nation”.
However, the prime minister forgets that, through the ages, it was the criticism of the nation by “nationalistic” citizens that brought about the most profound and lasting improvements in the society. If it was upto such people, India would perhaps still be a colony, slavery would still be practiced in large parts of the world and women would not have the right to vote.
Freedom of speech and expression, unhindered by sedition laws, serves to highlight the areas where the state is failing in its duty towards its citizens. Or would we rather have blind nationalism that mindlessly supports all that is Indian, just because it is Indian and transforms itself into the hopelessness that is inherent in a slogan often seen written behind trucks: “100 mein 99 baiman, phir bhi mera Bharat mahan” (99 out of 100 people are cheats, yet my Bharat is great)
The most contentious, perhaps, is the third type of dissent where harm to, or destruction of, India (Bharat ki barbadi) is purported. Such slogans have been widely condemned and labelled seditious.
In India, however, it is a part of the language of protest to wish death and destruction. The cries of “murdabad” are frequently heard at protests and effigies of political leaders are regularly burnt to symbolise their destruction. Yet, we do not criminalise those who do this.
Should one want destruction of one’s own country, even though in doing so, one would also invoke one’s own final damnation? Ideally, no. But in the real world there is often injustice, oppression and cruelty, and those who have been repeated victims, or those who empathise with the victims, can often be pushed to the point of lashing out.
Even the Supreme Court has, from time to time, said that this form of dissent was not illegal.
In its order in the Balwant Singh case in 1995, wherein on the day of the assassination of Indira Gandhi, slogans of “Khalistan Zindabad” and “Raj Karega Khalsa” were raised, the Supreme Court held that the mere raising of the slogans did not amount to sedition. “Raising of some lonesome slogans… without anything more, did not constitute any threat to the government of India.”
In a democracy, dissenting or alternative views, even unpopular or unreasonable ones, cannot be criminalised just because they are disapproved by the government of the day. The sedition complaint against Ramya for her statement, “Pakistan is a good country, not hell,” that contradicted defence minister Manohar Parrikar’s claim, takes the debate to a preposterous level, where praising or showing affection towards a neighbouring country is equated to sedition.
A nation which proclaims its commitment to democratic values cannot allow the practice of using regressive colonial era laws to restrict free speech and expression. Countries like the United Kingdom, New Zealand and Ghana have repealed their sedition laws, while in several other democracies like the US and Canada, the law has been allowed to fall into disuse.
The underlying assumption in most societies, especially in democracies, is that people’s thoughts and emotions ought not to be regulated. Laws should regulate only actions that could be harmful to others. In India, there is no argument for retaining Section 124A to prosecute incitement to violence and disturbance of public order, as other laws have adequate provisions to address these concerns.
Admittedly, there are cases involving caste, gender or religious sensitivities where even hurtful utterances are criminalised. However, this is due to historical distortions that, as time heals and corrects, would give way to the supremacy of free expression. Do we want to start accepting new areas of sensitivity in the name of nationalism, for this would be a never ending list that would soon make democracy meaningless.
Anjali Bhardwaj, Amrita Johri and Shekhar Singh are social activists working on issues of transparency and accountability.