“Section 124A, under which I am happily charged, is perhaps the prince among political sections of the Indian Penal Code designed to suppress the liberty of the citizen. I hold it as a virtue to be disaffected towards a government, which in its totality has done more harm to India than any previous system. 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.”
– Mahatma Gandhi on March 18, 1922.
“So far as I am concerned that particular Section [124A IPC] is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better. We might deal with that matter in other ways, in more limited ways, as every other country does but that particular thing, as it is, should have no place, because all of us have had enough experience of it in a variety of ways and apart from the logic of the situation, our urges are against it.”
– Jawaharlal Nehru, India’s First Prime Minister, during the debate in Parliament on the first amendment to the Constitution.
January 15, 2019, will be a milestone in the campaign against the most-abused law against free speech: Section 124A of the Indian Penal Code (IPC), dealing with sedition, enacted during the colonial era. On that day, the Delhi Police filed a 1,200-page charge sheet invoking this draconian provision against 10 persons accused in a case that involved the mere raising or supporting of slogans that are seemingly “anti-national” at a gathering of university students on February 2, 2016. The event was held at Jawaharlal Nehru University (JNU), New Delhi, a vibrant centre for higher education, where students have traditionally enjoyed abundant freedom to discuss and exchange ideas uninhibited by the restrictions inherent in the laws meant to safeguard the nation from overt threats of organised rebellion. The police claimed to have video footage of the accused students raising and supporting anti-national slogans even though this by itself did not constitute prima facie evidence to sustain a serious charge against the state.
Under Section 124A, inserted in the IPC in 1870, 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. An explanation added to the provision says that disaffection includes disloyalty and all feelings of enmity. Another explanation is categorical that comments expressing disapprobation of the measures of the government with a view to obtaining their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under the Section.
The Supreme Court held in 1962 in Kedar Nath Singh vs State of Bihar that the Section must be so construed as to limit its application to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence. Kedar Nath Singh, the appellant in the case, stood convicted for sedition, and the Supreme Court upheld it; yet, its pronouncement in that case ought to have helped the rulers dilute the rigour of the provision in subsequent years. Unfortunately, they did not. Political parties, once in power, had no compunction in using the provision against their critics as a tool of harassment. There have only been a few successful instances of conviction despite many cases being registered for sedition.
The conviction of the well-known civil liberty activist-cum-medical practitioner, Dr Binayak Sen, by a lower court for sedition was one such instance that helped focus the nation’s attention on the need to repeal this dreaded law. Sen was accused of couriering seditious material, which he denied. While the Chhattisgarh High Court declined him bail in the case, the Supreme Court granted it as the merits of the trial court’s decision convicting and sentencing him for the offence remained unclear.
But the charge-sheeting of as many as 10 accused for sedition in the JNU case has set off alarm bells among those concerned with the state of free speech and civil liberties in the country. As the saying goes, eternal vigilance is the price of liberty. Any complacence that things will settle down with the rise of election fever is likely to embolden the authorities to experiment with further assaults on the republic’s valued possessions and guarantees.
Legal validity
The legal validity of the charge sheet in the JNU case is under a cloud, with the judge at the Patiala House Court, Delhi, Deepak Sahrawat, questioning the Delhi Police over its failure to obtain prior sanction from the legal department of the Delhi government and refusing to take cognisance of it on that ground. Section 196 of the Code of Criminal Procedure imposes a bar on taking cognisance of any offence punishable under Chapter VI of the IPC without the previous sanction of the Central government or the State government. Section 124A is grouped with nine other serious offences against the state under this chapter, including waging a war or attempt to or abetment of a war against the Government of India.
The Delhi Police assured the judge that it would obtain the requisite sanction within 10 days. Observers were, however, doubtful whether the Delhi government would easily oblige the Delhi Police in view of the power struggle between the elected government in Delhi and the Lieutenant Governor (L.G.) of Delhi, appointed by the Centre, which is far from resolved despite the Supreme Court’s judgment by a Constitution Bench on July 4, 2018, in favour of the elected government.
The bench held in its judgment thus:
“The issue as to whether the Lieutenant Governor of the NCT [National Capital Territory] is competent to accord sanction for prosecution under the Prevention of Terrorism Act [POTA] and the Code of Criminal Procedure was considered by a two-judge bench of this court in State (NCT of Delhi) vs Navjot Sandhu . In that case, sanctions under both the statutes were accorded by order and in the name of the Lieutenant Governor. The sanction under Section 50 of POTA was urged to be a nullity on the ground that in relation to the Union Territory only the Central government was competent to accord it. Section 2(1)(h) of POTA defined the expression “State” in relation to a Union Territory, to mean the Administrator thereof. Rejecting the challenge, this court held that under Article 239AA, the Administrator appointed under Article 239 does not lose his status as such and it is only his designation which is merged into the new designation of Lieutenant Governor ‘in keeping with the upgraded status of this particular Union Territory’. The Lieutenant Governor, who continues to be an Administrator, was held to derive authority to grant sanction under Section 50 by reason of the legislative fiction under Section 2(1)(h), the Administrator being deemed to be the state government for the purpose of Section 50.”
Although the Constitution Bench held that its previous decision in the Navjot Sandhu case was of no relevance to decide the constitutional question of the scope of the powers of Delhi’s elected government vis-a-vis the L.G’s powers, it is clear from the judgment that for the purpose of sanction, the L.G. cannot take a unilateral decision but is bound by the aid and advice of Delhi’s Council of Ministers.
It is because the sanctioning authority, whether it is the L.G. alone or acting with the aid and advice of the Council of Ministers in Delhi, cannot just be blind to the Delhi Police’s inordinate delay in filing the charge sheet as the alleged event happened nearly three years ago. The sanctioning authority should also take into account the Supreme Court’s subsequent jurisprudence after Kedar Nath Singh in order to determine whether the charge sheet against the accused in the JNU case will meet the requirements of scrutiny at the threshold stage.
Two decisions
Two such decisions of the court merit consideration. In Balwant Singh vs State of Punjab , decided by the Supreme Court in 1995, it was held that shouting of “seditious” slogans by the accused must also be accompanied by some overt act.
In Bilal Ahmed Kaloo vs State of Andhra Pradesh , decided by the Supreme Court in 1997, it was held that the mere allegation of being an active member of a militant organisation could not sustain the conviction for sedition as long as the accused did not commit an overt act against the government.
The Supreme Court’s observations in Bilal Ahmed Kaloo are pertinent. The court upheld charges against him (a Kashmiri youth) under the Arms Act but overturned charges under Sections 124A, 153A and 505(2) of the IPC. The court observed:
“ The manner in which convictions have been recorded for offences under Sections 153A, 124A and 505(2) has exhibited a very casual approach of the trial court. Let alone the absence of any evidence which may attract the provisions of the Sections, even the charges framed against the appellant for these offences did not contain the essential ingredients of the offences under the three Sections. The appellant, strictly speaking, should not have been put to trial for those offences. Mechanical order convicting a citizen for offences of such serious nature like sedition and to promote enmity and hatred, etc., does harm to the cause. It is expected that [the] graver the offence, [the] greater should be the care taken so that the liberty of a citizen is not lightly interfered with.”
Upswing in number of sedition cases
Irrespective of the outcome of the JNU case, there are sufficient reasons to suggest a pattern in the current onslaught in the garb of controlling sedition. Data compiled by the National Crime Records Bureau (NCRB) show a remarkable upswing in the number of sedition cases registered and pursued by the authorities across the country since 2014, when the NCRB began to collect data on sedition. As many as 35 first information reports (FIRs) were registered under Section 124A of the IPC in 2016, 30 in 2015 and 47 in 2014. Of 112 cases registered in three years, none were withdrawn by the government.
In 2016, 34 cases of sedition were taken up for trial, but conviction was secured only in one, the details of which are not available. Although the NCRB has not compiled data on sedition before 2014, it does refer to the number of pending cases from the previous years which suggests a sharp increase in the subsequent years.
One cannot be faulted for inferring that the upswing in the number of sedition cases registered can be attributed to the rising tide of intolerance, promoted and encouraged by the Narendra Modi government at the Centre since it came to power in May 2014. Those in power appear to see in the sedition law a convenient instrument to harass and intimidate ordinary people so that they do not even remotely think of dissent in their actions and in day-to-day life. The powers that be, therefore, consider the sedition law a political tool to achieve a chilling effect in order to discourage people from expressing dissent, which is considered by the Supreme Court as a safety valve of democracy.
The following cases amply vindicate the recent apprehensions of the scope of abuse of the sedition law.
On July 26 last year, the Jharkhand Police slapped sedition charges against 20 senior Adivasi activists for publishing critical posts on Facebook against the Raghubar Das-led government of the Bharatiya Janata Party and for allegedly playing a prominent role in the Pathalgarhi movement (where many Adivasi villages in Jharkhand put up plaques declaring their gram sabha as the sovereign authority and barring “outsiders” from entering their area). The accused included prominent activists such as Father Stan Swamy, former Congress legislator Theodore Kiro, and the activist Aloka Kujur. They were also charged with creating communal tension, violating the Information Technology (IT) Act and causing law and order problems.
In June last year, the Nasriganj police in Rohtas district of western Bihar held eight persons, including five minors, for sedition. The children were charged with threatening India’s unity by dancing to a song that spoke about “mujahids”. Their parents claimed that the boys were dancing to songs played by a DJ on his mobile phone and when the controversial song was played “inadvertently” in continuation, the boys kept on with the dance without discerning the lyrics. The boys, it was apparent, did not even know the meaning of the term mujahid. The police headquarters directed the Rohtas police to take action after a video of the song went viral on social media. The minors were produced before the Juvenile Justice Board and sent to remand homes.
In December 2017, four women from Sitapur in Uttar Pradesh were charged with sedition for stopping Uttar Pradesh Chief Minister Yogi Adityanath’s convoy. One of these women, Neetu Singh, was in the news earlier for “marrying” a picture of Adityanath to draw attention to the rights of anganwadi workers. Amid chants and drum beats, Neetu Singh symbolically “married” a picture of Adityanath, who is a bachelor, in the presence of fellow anganwadi workers in Sitapur. According to the women, the purpose of the mock wedding was to attract the attention of the government to their plight. The women were sent to judicial custody for 14 days. They were told that the authorities just wanted to talk to them but they were instead charged with sedition and sent to jail.
In October 2014, a 25-year-old philosophy student in Kerala was arrested after he and his friends refused to stand up when a music video of the national anthem was played at a theatre before the screening of a movie. He was charged with sedition and offence under Section 66A of the IT Act for allegedly publishing abusive social media posts about Independence Day. He was accused of sedition for allegedly sitting and hooting when the anthem was played at the theatre.
In March 2014, 67 Kashmiri students from Swami Vivekanand Subharti University in Meerut, Uttar Pradesh, were charged with sedition for cheering for Pakistan when that country’s cricket team beat India in the Asia Cup match. They were freed after the Uttar Pradesh government intervened under pressure from New Delhi and Srinagar. One of the expelled students said they were not hooting at the Indian side but merely cheering the talented Pakistani team.
As the Law Commission observed in a consultation paper (see box) released last year, a colonial legacy such as the sedition law, which presumes popular affection for the state as a natural condition and expects citizens not to show any enmity, contempt, hatred or hostility towards the government, does not have a place in a modern democratic state like India. The case for repealing the law of sedition in India is rooted in its impact on the ability of citizens to express themselves freely and to criticise constructively or express dissent against their government. The very existence of the provision in the statute book is a threat to democratic values, the Law Commission concluded. Sadly, the political class is yet to heed the strong and clear advice from the Commission.
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