By Karen Gabriel* and P K Vijayan**
What is the relation between the charges of ‘sedition’ and being ‘anti-national’? These are taken as almost synonymous terms, but in actual fact, bear a less than tenuous relation. The law on sedition, i.e., Section 124A of the IPC, reads as follows:
“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 Government with a view to obtain their alteration by lawful means, without exciting or 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 notconstitute an offence under this section.
Remarkably, this law, which is invoked in all alleged cases of sedition and/or of being anti-national, nowhere makes actual reference to either of these terms. Indeed, the wording of this Section is a delight for any government, since it explicitly protects the ‘government established by law in India’ and not either the nation as a whole or even the state in its entirety – just the government of the day. Thus, any criticism of the government of the day, or of its ‘measures’, or of its ‘administrative or other action’, that may be perceived to excite, or attempt to excite, ‘hatred, contempt or disaffection’ towards the government, can attract this law.
The law in this instance is not just an ass, it is a particularly retarded version of the ass. It is ridiculous in the Indian context to expect that simple criticism of governmental ‘measures’ and ‘actions’ will be sufficient to ensure their withdrawal or rectification (and rightly so, since no single opinion should determine public policy). Actual rectification requires the building of a critical mass of public opinion against the impugned measures and actions – the explicit rousing of disaffection for them, if not hatred and contempt – in order for the government to even bother to take notice. But any such mobilization of disaffection stands in immediate danger of attracting Section 124A. In other words, the very provisions of our system that provide us the democratic means to influence and shape policy, are rendered illegal under this Section.
It is true that various Supreme Court judgments have specified the purview and applicability of this Section to only those cases where it can be shown that the alleged offender had incited or sought to incite violence, through his or her criticism. But even with these stipulations, this particularly diabolical section of the IPC leaves much room for interpretation. For starters, the Section itself stands unaltered in the IPC, which allows charges to be filed and arrests to be made under it, even in the obvious absence of any incitement to violence. That question – of whether or not there was incitement to violence – is then left to be sorted out through arguments in court – and till then, those charged or arrested are at the mercy of the state, for the duration of the case.
And even then there may be no relief: as has been happening increasingly, the luminaries of the lower courts are only too happy to oblige the government of the day, and find such accused guilty, so that they can rest assured in the confines of whichever jails they happen to be sent to, that they will have to languish there till the matter reaches the Supreme Court, before they can expect to be cleared of the charge. Often even bail is denied to such seditious individuals, for fear that they might spread the infection of their seditiousness – or perhaps, as exemplary deterrent.
This is one of the reasons why this Section has been invoked increasingly in recent times: it permits the state to initiate legal and detentive action against all accused under this section, regardless of any evidence against them, and leaves it to them to prove they are innocent of any attempt to incite violence. This inversion of the dictum, ‘innocent until proven guilty’, was in fact explicitly articulated by the former Delhi Police Commissioner, BS Bassi, when he said it was up to the arrested JNU students arrested and charged with sedition, to prove their innocence.
One of these students, Kanhaiya Kumar, has been released on bail, probably because of the enormous public pressure. But it seems unlikely that the other two students, Anirban Bhattacharya and Umar Khalid, will be granted this benefit, for the simple reason that one of them is a Muslim, and the other is associated with him politically. Being Muslim is apparently particularly damning proof of sedition these days, even superceding the more legal requirement of proof of inciting violence. But the fact that both Umar Khalid and Anirban Bhattacharya were left of the left in their political leanings may, in the current profoundly rightwing climate, prove to be sufficient grounds to keep these two young students incarcerated indefinitely.
This is the only conceivable real explanation for the denial of bail to Dr SAR Geelani, the Delhi University professor arrested on identical charges of sedition as Kanhaiya Kumar, Anirban Bhattacharya and Umar Khalid. The stated explanation was, ‘Since the applicant/accused, along with 20-25 youths, were raising anti-national slogans…it can be inferred…that they intended to bring the Government of India into contempt with a likelihood of eruption of violence and public disorder….’
It must be remembered that Geelani had been arrested for convening an event at the Press Club of India on the anniversary of the hanging of Afzal Guru. Even if the Court wanted to doubt Geelani’s statement that he did not himself raise anti-national slogans, it had to have been aware that, within such an institutional environment, sloganeering was even less likely to erupt into ‘violence and public disorder’ than the open-air JNU event. It is telling that Geelani was also charged with Sections 120B (criminal conspiracy) and 149 (unlawful assembly) of the IPC. The police evidently realized that the charge of sedition alone would be difficult to uphold, and needed to bolster it with the (albeit equally baseless) charges of criminal conspiracy and unlawful assembly.
That apart, a crucial point here is that there is no law in India that either specifies what ‘anti-national’ means, or in what ways it constitutes a crime, or what penalties it must attract. This is because, strictly speaking, being anti-national does not mean going against the nation per se, but against being a particular kind of national – i.e., it means going against a particular kind of nationalism. Geelani’s real ‘crime’ was that he, like Umar Khalid, Anirban Bhattacharya and the other JNU students, dared to question the rabid, bloodthirsty jingoism that passed for the ‘conscience of the nation’, to satisfy which Afzal Guru had to be hanged. It is a sign of the pervasiveness of this nationalism in our times that not even the judiciary – with notable exceptions like Justices Markandey Katju, A P Shah and Kurian Joseph – is able to distinguish anymore between government and state, state and nation, nation and national, and national and nationalism. Which is why criticism of this nationalism is perceived as criticism of the nation itself, thereby of the government, and hence seditious. Which is why, today, being ‘anti-national’ has become a crime without a law that spells out its criminality.
We need to ask whose nation it is that the dominant nationalisms of our day espouse. It is not the imagination of the nation of the Rohit Vemulas and Umar Khalids of India; it is not the imagination of the nation of the north-eastern students who are assaulted (sexually and otherwise) on the streets of the capital and elsewhere; or of the farmers who commit suicide because they are irredeemably in debt; or of the adivasis who are hunted out of their homelands because big corporates want the land and the mineral wealth they are sitting on; or of the dalits who are beaten and lynched and subjected to humiliations of every kind, on a daily basis, across the country; or of the Kashmiri mothers whose sons are lined up and shot by the Indian army; or of their sisters who are raped and killed by the same army; or of the activists arrested for sedition because they protested against nuclear power at Koodankulam; or of the Muslims who live in constant fear of becoming the victims of imminent communal conflagration; or of the Muslims and Christians who are persecuted into converting back into Hinduism in the ghar wapsi program; or of the workers in automobile factories in Gurgaon who are lathi-charged by the police for going on strike; or of the academics and students who question the basis on which the government commits legally sanctioned murder; or of the vast millions who have been living below the poverty line for decades, the victims of the ‘progress’ of the upper-caste, upper-class, Hindu majoritarian ‘nation’ imagined by calibrated shades of Hindutvavaadis.
These constitute the seditious nation of discontents that are being branded anti-nationals, because they dare to speak a different idea of the nation.
The sedition law should have been struck down long ago, on the very simple grounds that no single government, of whatever political hue, can or indeed should claim such absolute safeguards from criticism, whether or not such criticism may be apprehended to lead to disorder and violence. If the judiciary had properly discerned the distinction between government and state, state and nation, and nation and nationalism, the fundamentally undemocratic protection that the sedition law affords the government in power would have immediately stood revealed, and contained.
There are enough and more provisions in the Indian legal system to deal with apprehensions of violence and disorder per se; there is no legal need to specify the source, as criticism of the government, in order for those provisions to become applicable. In other words, criticism of the government should be allowed, regardless of any apprehensions that it may lead to violence, because the state is already well equipped to deal, both preemptively and punitively, with such putative and actual violence. The real apprehension is what is increasingly coming true: that successive governments will use even the apprehension of ‘violence’ to clamp down with an increasingly militarized hand – with the possible support of the judiciary and shamefully aberrant lawyers – on any kind of criticism. This is one of the defining qualities of fascism, and India today is being increasingly defined by this very quality.
*Marie Curie International Senior Research Fellow, and Assoc Prof, St Stephen’s College, Delhi University; **Assistant Professor, Hindu College, Delhi University. Source: countercurrents.org