The law of ‘sedition’ has assumed controversial importance nowadays in view of various changes that have taken place during the last four decades. Sedition in common language means a stirring up of rebellion against the government. The word ‘Sedition’ under section 124A of Indian Penal Code (IPC) is used to designate those activities that either by words, deeds or writings are calculated to disturb the tranquility of the state and lead people to subvert the government established by law. The provisions of 124A apply only to speeches and writings having intentions or tendency to incite others to create public disorder or violence. Criticism of government, however strongly worded does not fall within the ambit of these sections. So long as there is no intention or tendency to incite others to public disorder, the provisions of these sections are within the ambit of clause 2 of article 19 of the Constitution and are not void as being in violation of the right of freedom of speech and expression guaranteed in article 19 (1)(a) of the constitution.
Sedition was used by the British Colonial government to suppress nationalists and dissent in the Indian sub-continent during the nineteenth and twentieth century. Under the IPC it was originally framed in 1837 by Lord Mackaulay in section 113 of the Draft Law. It was amended in 1898 and it expanded the scope of the law by including terms ‘Hatred’ and ‘Contempt’ along with ‘dissatisfaction’. It was used to suppress the writings and speeches of prominent Indian nationalists and freedom fighters. Today, it is applied to curtail reasonable criticism of the government and the provision is still used to stifle any similar act.
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 that may extend to three years, to which fine maybe 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 offense 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 offense under this section.
Section 124A is not void in view of the proviso to Article 19 (I)(a) of the constitution. Criticism of the Government howsoever strongly worded is not punishable (In 1962, the Supreme Court said in Kedar Nath versus State of Bihar and State of UP versus Ishaq Ilmi.)
The apex court gave a detailed account of the various decisions of the Federal Court and the Privy Council relating to section 124A starting from 1892 in Bangabasi’s case 1892, Queen Empress versus Amba Prasad, Niharendu Dutt 1942 till the enactment of the constitution of India on 26 January 1950. The question for decision in these cases is how far is the offense as defined in section 124A, consistent with the fundamental right guaranteed by article 19(1)(a) of the constitution that states:
- (1) All citizens shall have the right –
- a) Freedom of speech and expression:
- b) This guaranteed right is subject to the right of the legislature to by clause (2) which in its amended form reads as follows:
‘Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law or prevent the state from making any law in so far as law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of
- the security of the state
- friendly relations with foreign states,
- public disorder, decency or morality,
- or in relation to contempt of court,
- Defamation or incitement to an offense.
The right is subject to such reasonable restrictions as would come within the purview of clause (2).
Hence any acts within the meaning of section 124A that have the effect of subverting the government by bringing the government into contempt or hatred, or creating disaffection against it would be within penal statute because the feeling disloyalty to the government established by law or enmity to it imports the idea or tendency to public disorder by the use of actual violence or incitement to violence.
In other words, any written or spoken words etc. that have implicit in them the idea of subverting the government by violent means that are compendiously included in the terms ‘revolution’ have been made penal by the section in question. The section has taken care to indicate clearly that strong words used to express disapprobation of the measures of the government with a view to their improvement or alteration by lawful means would not come within the section. Similarly comments however strongly worded, expressing disapprobation of actions of the government, without exciting those feelings that generate the indication to cause public disorder by acts of violence, would not be penal. Disloyalty to the government established by law is not the same thing as commenting in strong terms upon the measures or acts of the 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 exercising those feelings of enmity and disloyalty which imply incitement to public disorder or the use of violence.
The expression ‘in the interest of….public order’ of clause 2 to article 19 are words of great amplitude and are much more comprehensive. Any law that is enacted in the interest of public order may be saved from the vice of constitutional invalidity. Penal only such activities as would be intended or have a tendency to create disorder or disturbance of public peace by resort to violence. The explanations to the section make it clear that criticism of public measures, or comments on government action, however strongly worded would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words written or spoken etc. have pernicious tendency or intention of creating public disorder or disturbance of law and order.
Having explained that, the question at large remains.
Are the students of the Jawaharlal Nehru University, who have been slapped with 124A, guilty of Sedition? No, they are not. I want to know why they were not booked in simple, non-cognizable offenses and why sedition at all? I can think of a plethora of simple offenses that would have sufficed and would have dealt with the issue at hand, for e. g.
- Section 141-Unlawful Assembly’,
- 153A –Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony or even
- 153B-‘Imputations, assertions prejudicial to national integration’.
To have a cognizable offense slapped against them in contrary to lesser non-cognizable offenses (mentioned above) which were applicable in as much, just proves in itself that there was a clandestine agenda and it was a deliberate attempt from the echelons at the echelon level to thwart any criticism voicing against them. Resorting to sedition makes it clear that the mainstream government has a penchant for autocracy or maybe constitutional monarchy. It goes on to mean in literal terms that voicing out against certain activities of the government will not be tolerated by the present government.
Ironically, the unspoken fact remains that certain assertions in the parliament sessions day in and day out and certain assertions by select media are as seditious in nature as anything and have not been dealt with the same disdain as the ruling government did with a group of students who were merely academicians and not politicians. It is a shame that our country has succumbed to an utmost prejudice and has become too sensitive to handle criticism which in effect is every citizen’s right who votes.
An anti-national to be an anti, national should feel:
- Hatred towards one’s country.
- Hatred towards people living in diversity.
It cannot be deduced that in a democratic setup if people are out on the streets against the government (that the masses have elected), they should be penalized with cognizable offenses and be termed as ‘anti–nationals’. It is very unbecoming of our government and must be done away with, especially when there is no violence involved per say.
In retrospective of that, the Supreme Court is empowered by the constitution as the official interpreter of the constitution so whatever they say: goes right or wrong. That does not mean one has to necessarily agree to every judgement passed by the Supreme Court. A mere disagreement cannot amount to contempt of court. The appellant Court cannot abrogate laws but it sure can declare, some provisions unconstitutional or perhaps give guidelines.
A state that practices democracy should be open to criticism however strongly worded, because that is the very essence of democracy, to let the representative of the people govern the people the way they intend to be governed. Haven’t we all anyway given up our certain rights when we entered into a social contract?
It is a fundamental right of every person in this setup to challenge any government that becomes authoritative and violates the fundamentals of democracy. The masses cannot be forced to acquiesce to the demands of the ruling parties. Instead of appeasing the citizens who feel the wrath of injustice are otherwise being held liable. The brazen steps, the police force and the media took while dealing with this issue points out only thing that they were extolling the government of its virtues. Law enforcement agencies should maintain discretion while framing charges and must see to it that it is done meticulously and with utmost delicacy.
The condor actions of cops and the term “ethical Journalism” has long gone and been erased from our country. The cumulative decry of the citizens against despotism is taking place and has always been a pebble in any governments shoe, we can only conclude that the fractious behavior of the extremist parties backing the ruling Bhartiya Janta Party (BJP) led to the arrest of the students at the JNU in a gratuitous attempt, in simple terms.
The political will of the governments in the past and in the present with regard to sedition has been zilch, that is to say that sedition is used as a tool against the masses to disorganize or curb any voice that is being raised against them, and it is a convenient veil for them. The British used it then against the nationalists like Bal Gangadhar Tilak, Mohan Das Karamchand Gandhi, and it is in effect till date.
As much as it is wrong to say but sedition is to stay, because for it to be done away with, a two-third majority is required in the parliament and it seems that this issue will not see the light of the day in the parliament anytime soon. It will remain in force in as much and if that has to happen then it’s about time the democratic setup of India goes, as the state cannot and should not practice ruthless obsolete colonial laws and bask in the glory of democracy. The two do not go hand in hand. If sedition is to be used in India, then it’s about time the government decides to validate monarchical setup as we are certainly without any doubt heading towards anything but democracy.
Rahella Khan is an advocate and a visiting faculty at Law College, Bharati Vidya Peeth University, Pune.