Sedition Law and Indian Democracy

The law of sedition as provided for in Section 124A of the Indian Penal Code, has indeed had an extraordinary history. This highly controversial section did not form a part of the Indian Penal Code when it was enacted in 1860, although it was proposed to be included by the draft prepared by the Indian Law Commissioners in 1837.It is said that the section 124A was originally enumerated under s. 113 of Macaulay’s Draft Penal Code of 1837-39, but it was only in 1870 that the provision for sedition was inserted by the IPC (Amendment) Act. This was in response to the increasing Wahabi activities between 1863 and 1870. This provision was later on replaced by the present Section 124A by an amending Act of 1898. According to Arvind Ganachari [1], the framework of this section, the amended sedition law i.e Section 124-A was imported from various sources- the Treason Felony Act (operating in Britain), the Common law of seditious libel, and English law relating to seditious words.

Section 124-A of the Indian Penal Code (IPC), as it stands today

“Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, 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.

Explanation 1 – The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2 – Comments expressing disapprobation of the measures of the attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3 – Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”

The fundamental difference between the former Section 124A and the present one is that in the former the offence consisted in exciting or attempting to excite feelings of “disaffection” as punishable, but in the latter the act of “bringing or attempting to bring into hatred or contempt the Government of India” has also been made punishable.

Tracing down the history, the most famous use of Section 124A of the IPC was against, the Famous freedom fighters, Bal Gangadhar Tilak, in 1897. [2] He was convicted under the Sedition law for making a statement regarding the killing of Deccan chieftain Afzal Khan by the Maratha warrior-king Shivaji. Consequently, his statement incited the murder of two British officers. Similarly, Mahatma Gandhi in 1922 was convicted under the same law in the famous- Great Ahmedabad Trial, in which Gandhi was charged with sedition i.e for “spreading and inciting disaffection” against the then British-ruled government. [3]

The main motive behind recalling all these past events is to put to the forefront that the section 124A mainly intended to suppress and repress all those who pointed out the exploitative and illegitimate colonial administration of the government. This, certainty is not important in a democratic form of government which exists for the welfare of its own people, such a law if interpreted in the strict sense would limit the fundamental rights of the citizen to express its views for or against the government. This brings us to the conclusion that the Indian parliament should repeal the colonial-era sedition law which heavily infringes the fundamental rights of the citizen of India.

In 1946, a mention regarding the sedition was made in the Bhagwati Charan Shukla vs Provincial Government, Central Provinces, (1946) Nag. 865 [4] by a Judge in the Nagpur Bench whereby it was held that;

“It is not sedition merely to criticize Government however bitterly or forcibly that may be done, or to seek its overthrow by Constitutional means in order that another Government, equally Constitutional, may be substituted in its place in a Constitutional way. It becomes sedition only when the intention or the attempt is to induce people to cease to obey the law and to cease to uphold lawful authorities’’

This view brought out in the case, Bhagwati Charan Shukla vs Provincial Government [5] in 1946, was again reiterated in by the Supreme Court in the landmark case Kedar Nath case AIR 1962 SC 955 [6] whereby the Chief Justice B.P.Sinha said that the

“Comments, however strongly worded expressing, disapprobation of the actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people …”

Prime Minister Jawaharlal Nehru in Parliament during debates on the first amendment to India’s new constitution, 1951 strongly criticizing the Sedition law under Section 124-A put forth his views by stating that

“Take into consideration again Section124-A of the Indian Penal Code. Now so far as I am concerned this particular section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in anv body of laws that we might pass. The sooner we get rid of it the better.”

The basic problem with this law is that it heavily infringes the fundamental right of the freedom of speech and expression enshrined in PART III of the Indian constitution under Article 19(1) [7] . “Article 19(1)(a) of our Constitution guarantees freedom of speech and expression. Section 124A is against the fundamental rights of the citizens,” says Lakhanpal [8] .

Moreover, this section explicitly says that disloyalty towards the Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to restructure the condition of the people and in order to seek the welfare of the people.

Recent controversy regarding the said section was regarding the comments made at the Convention on “Azadi–The Only Way”, whereby Hurriyat leader Syed Ali Shah Geelani, the Booker Prize winning author-activist Arundhati Roy and pro-Maoist leader Vara Vara Rao among others were charged under the offence of “Sedition”. At this juncture, it’s sad to note that the nation has silenced its writers, activists and ordinary citizens from expressing their views.

A long-time campaigner seeking freedom for the rebellious state of Jammu and Kashmir from the Indian Union, Roy had reportedly said that Kashmir was never an integral part of India and that British imperialism had been replaced by Indian colonialism in 1947. This statement made by her lead to a state of turmoil which angered the judiciary as well as the Government of India who then proceeded to slam charges of Sedition against her and Geelani for making such “derogatory “ statements in context Kashmir’s independence.

Justifyig her stand, Arundhati Roy stated that :”I said what millions of people here say every day. I said what I as well as other commentators have written and said for years. Anybody who cares to read the transcripts of my speeches will see that they were fundamentally a call for justice,” [9]

Voicing ones opinion against the malpractices and maladministration of the government should not put one under attack from Section 124-A which would thereby lead to infringement of the fundamental right of freedom of expression. Human rights groups and political activists believe that this law is a “blot” on Indian democracy. “This is a black law. The very notion that a political activity could be declared seditious and people put in jails is against the democratic principles,” says Kavita Krishnan, national secretary, All India Progressive Women’s Association.

By maintaining that freedom of speech cannot violate patriotic sentiments of the people, Union law minister M Veerappa Moily responded to Roy’s assertions by saying “Yes, there is freedom of speech…it cannot violate the patriotic sentiments of the people.”

It is said that when a person who has no standing in the sphere of politics or is not a representative of a political group, then the views put forth by that person is plainly in context of his own affairs and his own personal view regarding the shortcomings of the government. Its cannot be regarded as “mudslinging” as the intention behind making such statements is purely to uplift the standard of parliamentary functioning which consistently aims at promoting the welfare of the society.

On the contrary, it is said that freedom of speech did not mean the right to demand secession. The Freedom of speech and expression is subjected to reasonable restriction under Article 19(2) which helps one not to misuse this privilege.

Recent furore regarding the Binayak Sen case, reflected the pathetic state of affairs at the judicial level. It showed that our Sedition law has strongly acquired the same context and colour as the anti-blasphemy laws of elsewhere. It is very aptly said that the “Public policy is a concept antithetical to the partisan politics [10] ”

Binayak Sen, a medical doctor, was convicted on December 24, 2010 on the charges of sedition and conspiracy under the Chhattisgarh Special Public Safety Act, 2005, and the Unlawful Activities Prevention Act, 2004. Mr Sen was accused of carrying messages from the imprisoned Maoist ideologue Narayan Sanyal and propagating them.

But the fact remains that he never resorted to violence against any other person, incited anyone else to resort to violence, entered into any conspiracy against the Constitutional order of the country, entered into any organizational activities to propagate ill-feelings against the government or encouraged any violence against the government.

It’s high time that the Government realizes the need to repeal the colonial era- Sedition Law which has been arbitrarily used by the authorities over the years to merely “silence peaceful political dissent” [11] . As aptly said by Meenakshi Ganguly, South Asia director at Human Rights Watch. “Using sedition laws to silence peaceful criticism is the hallmark of an oppressive government,”

At the heart of this controversy regarding the Section124-A lies a black-and-white issue: Can an Indian citizen justify and support a call for a part of the country to secede??Can a citizen point of the shortcomings of the government machinery ?? Does he have a right to freely express himself without being charged with the offence of “Sedition”??Does he have a right to voice his opinion when he feels that his right is infringed??? The Answer to all these questions still remain unanswered, irrespective of the fact that these sentiment against such behaviour is legally enshrined in Section 124A of the IPC, written in the late 19th century — more than a hundred years ago — by the imperialist British.

At this juncture, it is important to point out that the democratic edifice of our country is not fragile to be easily shattered by ways of speeches in public places or by printing an article in the print media. In other words, the unity and integrity of India and the legitimacy of the Indian state are not as weak as it was in the case of the British colonial regime to be threatened and shattered by the speeches or the writings of a section of the political class.