Once Again, Sedition is at the Heart of Defining the Nation

Tracing the history of sedition from Tilak to Modi reveals not just the colonial roots of the law but also a much graver problem confronting India today: that of the violent redefinition of the national in relation to popular sovereignty.

Free India is, among other things, an outcome of sedition.

A little over a century ago, Bal Gangadhar Tilak was tried for the second time for sedition. The 1908 case against Tilak was for inciting what in today’s terms can be called ‘hate speech’ and violence. It was Tilak’s articles in his newspapers that had led to his prosecution. The case made Tilak into a national and international figure. Lenin was half wrong in declaring Tilak as the figurehead of revolution in Asia: wrong because Tilak was no communist, and arguably correct because Tilak disrupted the colonial rules of engagement in politics.

The law of sedition was part of the colonial legal apparatus, codifying rules of political engagement between the ruler and ruled. First set up in 1870, ‘sedition’ was introduced to manage publicity and press, to counteract the spread of Wahhabism specifically and anti-imperial propaganda more generally. In its initial legislative import, sedition in colonial India made central the idea of ‘disaffection,’ and this remained vague but unchanged till the closing years of the 19th century. In this version of the colonial law, ‘disaffection’ was primarily interpreted as a breakdown of public order between communities and its regulation by the colonial state. Critically, a seditious act was not necessarily equated with an act of disloyalty. It only clarified the role of the British as the powerful third party that oversaw relations between Hindus and Muslims.

By the turn of the 20th century, the law was amplified and associated directly with disloyalty to the body of the sovereign. This amplification no longer associated it with public order alone. It was attached instead to the question of loyalty to the sovereign and as such recognised the emergence of popular anti-imperial politics. Religion and politics were therefore triangulated in the law of imperial sovereignty.

As a direct outcome of violence in Bombay in 1898, erupting out of the coercive colonial management of the bubonic plague that had engulfed much of western India, sedition and its application were given a more precise meaning. The violence and the rioting in Bombay, in which cow protection and gymnastic societies were active, had broken out along the lines of Hindu-Muslim antagonism. Tilak was prosecuted and sent to prison for six years under the new legal definition of sedition. The 1898 act augmented and amplified the meaning of sedition. It retained the original idea of ‘disaffection’ as an incitement to ‘hatred or contempt’ via ‘words, either spoken or written, or by signs, or by visible representation’ as punishable. And yet what was striking was that ‘disaffection’ was, for the first time, categorically explained as ‘disloyalty’ and ‘feelings of enmity’ against the queen empress.

To cut a long and acrimonious story short, colonial coercion and censorship policed the press as a political domain. Up until this point, colonial censorship had left the world of religion free from its censoring powers. This relative autonomy of the religious realm had allowed for figures like Tilak to articulate political questions in a religious language suffused with cosmological metaphors. This led to the production of what Christopher Pinney has called a deadly form of cosmological politics.

In circumventing colonial censorship, Tilak produced a popular vocabulary contesting colonial rule, and at the same time distributed its popular appeal in specifically religious, partisan and potentially antagonistic registers. In short, it soon became clear to the colonial censor that metaphors in the press that appeared to castigate demons from epic and religious tales (mostly from the Mahabharata), especially those penned by Tilak, were not only inciting violence between communities, but were in fact damning and decrying British rule. This doublespeak was rendered as seditious disloyalty.

Now the colonial law of sedition operated in relation to the sovereign. Tilak was pitted not against a government, but against the person of the sovereign or the empress herself. Tilak’s defence was that the words and actions that had brought him to court were aimed at the local bureaucracy and officials. Disloyalty, as his counsel and friend Mohammad Ali Jinnah argued, was beside the point. Tilak lost. On his release from Rangoon, he went to London and sued Valentine Chirol for defamation. Chirol was the editor of The Times and author of the imperial bestseller, Indian Unrest, whose writings had provided the evidence against Tilak for sedition. Defamation was Tilak’s response to his prosecution. For legal enthusiasts, it is not entirely irrelevant that the origins of sedition laws in England lay in defamation and libel law. Sedition was written into law precisely to distinguish it from defamation or libel, as it pertained only to the sovereign. Ordinary mortals could be defamed but the sovereign was not ordinary. The sovereign figure could not be defamed but only harmed by disloyalty.

In the following decades and right up to the INA trials on the eve of independence, Indians from Gandhi to Azad and several others were tried and imprisoned for sedition. As the struggle for freedom became popular in the cities and countryside alike, the empire armed itself by amplifying its battery of legislation, from the Defence of India Act to the infamous Rowlatt Acts and a host of other emergency laws. Sedition remained the centrepiece of these laws, with its defiance forming a distinct domain of politics as it defied emperor and empire alike.

Sedition in Nehru’s India 

Free India broke from this form of legal and substantive sovereignty. The Indian constitution does not recognise any sovereign. Quite the opposite. In doing away with the British monarch and declaring India’s freedom as a republic, Nehru categorically deposited sovereign power with the ‘people’. At the time of independence, this allowed him to rid the country of nearly 600 petty and not so petty monarchs in the form of Indian princes since, as he forcefully argued, they derived their sovereignty from the British monarch. Neither god nor what is quaintly called the ‘Divine Legislator’ in other Western traditions, nor indeed a monarch, nourished, oversaw or legitimised sovereignty in Nehru’s vision of free India. Sovereignty began and ended with the people. Nehru’s speech on the ‘Objectives Resolution’ at the inaugural session of the Constituent Assembly in 1946 made this clear, as it directed the constitutional conversation for the next two years. Nehru’s speech was the original and revolutionary moment of republicanism in India.

More substantively, in depositing sovereignty with the people Nehru ensured that it was with no outside power – be it king or god – making it internal to and immanent in the social and national order with the Constitution as its sole guarantor. More significantly, popular sovereignty equated the ‘republic’ and tied it inextricably to democracy. As Nehru put it in his speech, the word ‘republic’ contains ‘democracy’ within it. Republicanism then enshrined popular sovereignty as one and indivisible. Democracy, on the other hand, ensured the competition and diversity of views among the people.

Making the ‘people’ sovereigns is what has allowed for democracy to become synonymous with the experience of freedom in India. Republicanism, it could be argued, trumped every other political ism and ideology in independent India, with democracy as its mandated expression.

The test of popular sovereignty is therefore not loyalty, as there is no supreme power above the ‘people’. Instead, the test of popular sovereignty is democracy. Democracy enshrines ‘majority rule’ as its test. In making the ‘people’ sacred, the Indian constitution categorically disallows the equation of the ‘people’ with any partisan group, majority or religion. Popular rule, as Nehru envisioned, could change hands, but popular sovereignty had to remain steadfast. It is, therefore, no mean achievement that the Indian constitution remains sacred to the idea of independent India.

Implications for today

The invocation of sedition today, then, points not simply to the presence of a dead and archaic law belonging to the colonial past. It is certainly that. But its presence, persistence and now repeated deployment, reflect a more serious problem. It points to the violent redefinition of the national in relation to popular sovereignty. Any redefinition of popular sovereignty by splitting it as a form of loyalty to any pre-given majority – be it hereditary majority or even the government of the day – can only be successful by imperilling democracy itself. This is the logic of the Indian constitution.

Nehru’s era saw the global dominance of hard won national sovereignty, which included that over economic life. But in the global era and across the world, national sovereignty now seems weak in the face of the mobile and encompassing power of business, money, capital – or call it whatever you may. Yet the economic order today is intransigent to and defiant of the national. It is little wonder that when faced with such a diminution of sovereignty, a strident new nationalism has targeted the cultural institution, be it a premier university, an author or a book. Economic globalisation and cultural nationalism are directed at circumventing, eliding and overwhelming social distinction and inequality, as neo-nationalism becomes increasingly dependent on and identified as a doctrine of uniformity brooking neither difference nor dissent.

If Tilak discovered a gap between a popular vocabulary of politics and that of imperial law, his legatees want to close this gap between the ‘people’ and any majority group which the Indian constitution has preserved and made sacred. The deployment of sedition as a test of loyalty is bogus. This is precisely why the shrill charge of ‘anti-nationalism’ at dissenters is being met by an equally loud response of ‘we are all anti-nationals’. Once again, sedition is at the heart of defining the nation

Shruti Kapila teaches modern Indian history and political thought at the University of Cambridge.