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I must begin this piece with my compliments to those who have filed the recent petition in the Supreme Court challenging the role of Section 124A of the IPC, a colonial law which made sedition a crime, in democratic India.
Sedition, it must be emphasised, is no simple crime. Whoever “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India shall be punished with imprisonment for life to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.” This is a serious offence. And yet, the charge is treated lightly by the police and the prosecution.
This law was actually first considered in Lord Macaulay’s first draft of the IPC in 1837, as S113, but not included in the final Act of 1860. It was added in 1870 after S124, as Section 124A. The great lawmaker had not wished to include such a provision at all in his code, but was persuaded to include this later. And yet, at the time of independence, our own leaders had no qualms about retaining the provision; possibly they did not imagine its likely misuse.
Incidentally, S124, which precedes “sedition” is itself a strange law in today’s world, as it pertains to “assaulting President, Governor, etc., with intent to compel or restrain the exercise of any lawful power”, an act possible to envisage those days but hardly relevant today! In England, the 17th century law on sedition was removed in early 2010 through the Coroners and Justice Act, 2009, but it continues even today in independent India. Are there any pending cases under that provision?
Around the last years of the 19th century, the British imposed rigorous controls over the personal freedoms of Indians. And yet, S124A was in the statute books for 20 years before the first case came up in 1891. The case did not stand the scrutiny of the jury.
The most famous of these early cases was that against the firebrand Congressman Bal Gangadhar Tilak in 1897. Tilak’s writings, according to the administration, had led to the killing of two British officials. In 1897, he was awarded an 18-month prison sentence. The bench was presided over by its youngest member, Justice Strachey, who equated disaffection to disloyalty. Strachey’s interpretation of the law was that sedition meant disloyalty to the Government, it included every form of ill-will. According to his thinking, “if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section.”
There are some differences between the 1870 provision and the law as it stands today, post 1898. The S124A of 1870 defined sedition as exciting or attempting to excite feelings of disaffection towards the government, while the 1898 change to S124A made bringing or attempting to bring in hatred or contempt towards the government punishable. The IPC was amended to reflect that disaffection included “disloyalty and feelings of enmity”.
The most significant sedition case, after that of Tilak, must surely be that of Mahatma Gandhi in 1922. Gandhi’s statement is well known:
“…Section 124 A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence…. I consider it a privilege, therefore, to be charged under that section.”
The hearing took less than two hours. Gandhi received a jail sentence of six years, and he served two years of the term before he was released on grounds of ill health.
But not all judges, even in British times, were prejudiced. In an early case, of 1934, where one Kamal Krishna Sircar was charged with sedition for making a speech condemning a ban on the Communist Party, a two-judge bench of the Calcutta high court said:
“It is really absurd to say that speeches of this kind amount to sedition. If such were the case, then every argument against the present form of government and in favour of some other form of government might be alleged to lead to hatred. To suggest some other form of government, is not necessarily to bring the present government into hatred or contempt.”
With independence, Section 124A of the IPC remained in the statute books. But after the constitution was adopted in 1950, there was a sudden change in the legal position because Article 19 ensured “freedom of speech” to all citizens. The word “sedition” is not found in our constitution. The Constituent Assembly had decided not to include “sedition” as an exception to Article 19(1) (a), which guaranteed to all citizens the right to freedom of speech and expression. Consequently, a set of judicial pronouncements came in just after independence, standing up for the freedom of speech enshrined in Article 19.
Two significant cases of the time pertained to two journals, one from the left and the other from the right in our political spectrum. The first involved the left-oriented magazine Crossroads which was very critical of the Nehru government and was banned. It is ironic, in today’s context, that the second case was related to the censorship of the RSS mouthpiece Organiser; a prior restraint order was passed by the chief commissioner, Delhi on Organiser to submit the paper for scrutiny before it was published. Both matters went to the Supreme Court, the ban and the censorship orders were struck down.
The government moved quickly to control free speech. Thus came the very first amendment to the constitution in 1951, with the insertion of Article 19(2) which imposes reasonable restrictions on free speech. This is perhaps understandable, for violent threats and salacious or deeply communal speeches, for instance, can hardly be acceptable. But nowadays, when a Union minister exhorts a crowd at an election rally to chant “shoot the traitors”, no action under any provision of criminal law is taken against him for hate speech.
The amendment to Article 19 allowed S124A to remain on the statute books. The constitutionality of the law on sedition was challenged in the Supreme Court in Kedar Nath vs State of Bihar (1962). The court upheld the law on the basis that this power was required by the state to protect itself. However, it added a vital caveat that “a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.
The court held:
“What has been contended is that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of government, might also come within the ambit of ‘sedition’. But, in our opinion, such words written or spoken would be outside the scope of the section. A citizen has a 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.”
Use and misuse
According to one report, between 2015 and 2019, 191 sedition cases were filed, of which trials were completed in 43 cases. The prosecution managed to get a conviction only in four cases. In 2016, six sedition cases were dropped by the police for the lack of evidence and two were termed as false cases in final reports.
Despite this, there has been no hesitancy to register cases under the section. According to the National Crime Records Bureau (NCRB) data, the number of sedition cases that were filed nearly doubled between 2015 and 2018.
False booking of cases under sedition shows how treacherous it would be to have the law used loosely and calculatingly by the police. And yet, in modern independent India, with its constitutionally guaranteed freedoms, this law has been widely used and misused.
The year 2016 was important: that year there was a plethora of significant sedition cases. Some cases, in the face of a new jingoistic nationalism, are plainly atrocious, and filed by private persons who clearly had no locus standi per se. Merely because the Kannada actress Ramya had said, in 2016, that Pakistanis were hospitable people, actually in response to a comment by the then defence minister Manohar Parrikar that going to Pakistan was like going to hell, a lawyer filed a case of sedition.
In February 2016, a charge of sedition was filed against a young man named Kanhaiya Kumar, the then president of the Jawaharlal Nehru University Students’ Union in Delhi. The police arrested Kumar and two others for reportedly having demanded freedom. There was much discussion on the contents of Kumar’s speech. He himself had said, and others have argued, that the demands were not for freedom from India, but for freedom from poverty and social evils. Kumar was arrested and released on bail. At the time of the hearing in the lower court, at Patiala House, some hooligans dressed in lawyers’ garbs, roughed up Kumar, a few of his supporters and even a section of the media present.
In September 2016, in a public interest litigation, the Supreme Court elaborated on the meaning of sedition. The court re-emphasised the Kedar Nath case: “a citizen has a 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 disorder.”
On a private complaint of sedition, little children of a school in Bidar, in north Karnataka, were questioned by the police in 2020 for doing a play against the Citizenship Amendment Act, and a widowed parent was sent to jail for a substantial time. What would a private person ordinarily understand of the nuances of sedition? More importantly, why should the police not drop such complaints right away as unfit for prosecution?
In some sedition cases, the police did not even file the chargesheets within three months, allowing the accused to get bail. How flimsy, how insincere, is the use of the law, that the police are not even bothered about monitoring a case of sedition against the state!
In 2021, Disha Ravi, a college student from Bangalore and a climate change activist, was picked up from her home and “hijacked” to Delhi, by the police from the capital, on a charge of sedition. All they had against her was that she had disseminated a “toolkit” about the farmers’ protest. Unexpected social media protests followed, and after over a week, Ravi was given bail. How on earth can peaceful support of the farmers’ agitation be sedition?
Individuals charged with sedition have to live without their passport, are barred from government jobs and must produce themselves in court at all times as and when required – if they have got bail, that is. The legal costs, the time involved, the effort and the stress for the accused are enormous. The charges have rarely stuck in most cases, but the process itself becomes the punishment. It is so difficult to fight a legal system, even if the system is not biased. And if it is?
In a 2018 Consultation Paper on Sedition, the 21st Law Commission said:
“Democracy is not another name of majoritarianism, on the contrary, it is a system to include every voice, where thought of every person is counted, irrespective of the number of the people backing that idea. In a democracy, it is natural that there will be different and conflicting interpretations of a given account of an event. Not only viewpoints which constitute the majority are to be considered, but at the same time, dissenting and critical opinions should also be acknowledged. Free speech is protected because it is necessary to achieve some greater, often ultimate, social good. In the unforgettable words of Charles Bradlaugh: Better a thousand fold abuse of free speech than denial of free speech. The abuse dies in a day but the denial slays the life of the people and entombs the hopes of the race.”
But the term of the Law Commission ended on August 31, 2018, and with that ended any further discussion on the matter.
Free India has used a series of laws to control the personal freedom of those who have spoken against the policies of the state. Perhaps the most significant today are the Unlawful Activities (Prevention) Act (UAPA) and the Armed Forces (Special Powers) Act (AFSPA), both of which use the basic argument of division, of “we versus them”. But the colonial provision of S124A is perhaps the worst – it can make a loyal Indian anti-national by the stroke of a dishonest policeman’s pen in an FIR. It is a law that Macaulay himself did not want in his IPC. It is time that, in independent India, that law goes.
Abhijit Sengupta is a former secretary, Government of India.