On 14th of January, Delhi police filed a chargesheet against former Jawaharlal Nehru University Students’ Union president Kanhaiya Kumar and Umar Khalid, among others, in a sedition case lodged in 2016. The two student leaders and social activists have been charged for allegedly using ‘anti-India’ language during an event held on the anniversary of the hanging of Afzal Guru.
While there is considerable criticism about the chargesheet having been filed almost 3 years after the alleged incident, and merely months before the 2019 election, the Citizens for Peace and Justice (CJP) has come up with an explainer, authored by Shariq Us Sabah, a writer and economist, on what the sedition law is about, and how a colonial era law to keep freedom fighters in check is now being used in free India to silence dissenters.
Text of the explainer:
There is no doubt that the founding philosophy of administration in India is based upon the pre-independence British rule, and our Indian Constitution does hold true many laws that then existed. However, the British Law in India and the Indian Constitution are widely divergent in letter and in spirit.
The Government of India Act, and subsequent acts were also legacy of the British and aimed at centralizing the authority and to bring immunity to public control. However, our Constitution envisages democratic supremacy and works for the welfare of the state. It is absolutely shameful that the British colonial era laws continue to have relevancy in the legal systems of India and of Pakistan even today.
Interestingly the Sedition law drafted by Thomas Babington Macaulay in 1833 aimed to keep an eye on Indian “subjects” so that they do not express “disloyalty” towards the Empress of India who sat in London. The law successfully suppressed nationalist dissent in the subcontinent during the 19th and early 20th centuries. Ironically, it is being applied today to curtail what some critics feel are reasonable criticisms of the government. To add to another irony, the UK has itself abolished its own sedition law in year 2010, following the recommendations based on Britain’s Law Commission’s Report.
Section 124-A of the Indian Penal Code, in its current form, stipulates that:
“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.”
When nationalism broke out in India during 19th and early 20th Century in India, then people openly started to criticize the British Government of India. There were speeches made and prominent Indian Nationalists and freedom fighters printed various journals in many languages. Dramatic Performances Act 1876, The Vernacular Press Act 1878 were subsequent acts passed to control oral, written, pictorial, or performance based creative expressions and for better control of Indian language newspapers. Local language newspapers and journals were extremely effective in mass mobilizing people and for making them understand the real reasons for their suffering.
Various leaders like Mahatma Gandhi, B.G. Tilak were charged with sedition. In the response of the charges, Mahatma Gandhi had said, “Section 124A 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.”
History brings bad taste in the mouth when we read more about how this draconian law was misused to suppress popular voices, majorly of dissent. This law also contributed to suppress vibrant political movements against the British Colonial rule. “Obnoxious and highly objectionable one in body of law”, said Jawaharlal Nehru (1951, Parliament). Nehru suggested to get rid of it sooner.
Today also, this draconian law is widely misinterpreted and misused to target popular dissent. Unfortunately, it suppresses the voices of our own people. The constitutionality of Sedition has been challenged in various cases. In many of the cases, Honb’le High courts have declared “Sec. 124-A Sedition” as unconstitutional and void stating that “mere criticism of the government without any tendency to create public disorder has caught within the mischief of Sec. 124-A, then that section would be invalidated” as it restrict freedom of speech and expression.
This decision was from Allahabad High court from Ram Nandan vs. State of Uttar Pradesh was overruled in Kedar Nath Singh vs. State of Bihar, wherein the Constitution Bench of the Court held the Section 124-A constitutional. The court marked clear differences between speech and writing and also explains what possibly can excite violence or public disorder. The court however added, — strong criticisms of the government which speak “in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.”
Further, in Balwant Singh vs. State of Punjab, the Honb’le Court held that “advocating revolution, or advocating even violent overthrow of the state, does not amount to sedition, unless there is incitement to violence, and more importantly, the incitement is to ‘imminent’ violence”.
In Arup Bhuyan vs. State of Assam the Honb’le Supreme Court agreed with US Court decision in Brandenburg vs. State of Ohio, to state that “mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to violence.”
India has moved away from Imperialism to democracy but sadly these draconian laws still rule the statute books. Despite wide criticism, subsequent governments in India have used it as a tool to “Silence” dissenters.
It is high time and government must issue guidelines stating clear grounds of jurisprudential parameters of the law of sedition, otherwise it will be misused continuously and the state will fail to ensure right to dissent and democratic fabric of the country.
Even in Constituent Assembly, KM Munshi opposed the move and said, “if the provision was allowed to stay, an erroneous impression would be created that we want to perpetuate 124A of the IPC or it’s meaning which was considered good law in earlier days.” It is shameful and disheartening that the government in free India continue to use it for the very purpose for which the colonial government used it.