Interview: Anushka Singh

Demystifying sedition

Print edition : February 15, 2019

Anushka Singh. Photo: R.V. Moorthy

Interview with Anushka Singh, sedition law expert.

ANUSHKA SINGH is an expert on sedition law. A democratic rights activist, she is assistant professor at the School of Law, Governance and Citizenship at Ambedkar University, Delhi. She received a visiting fellowship for doctoral research at Tagore Centre for Global Thought, King’s College, University of London, in 2014, and an Indian Council of Social Science Research doctoral fellowship in 2015. She is the author of Sedition in Liberal Democracies (Oxford University Press, 2018).

Excerpts from an interview she gave Frontline:

How do you look at the sedition scene in India as compared to other countries?

Historically, I don’t think that India is a special case. All common law systems have had sedition laws more or less drawn from the English Common Law offence of sedition. The civil law systems have followed a different legal vocabulary. For instance, Germany has a law which criminalises incitement to violence and instigation of masses but not particularly seditious speech against the government. But, by and large, all liberal democracies at some point or the other have had laws to criminalise utterances against the ruling establishment.

What is unique about India is the journey of sedition alongside the advancement of democracy in contemporary times. In the 20th century, the law of sedition in other liberal democracies began to fall into disuse after judiciaries started reading down the law. The fact that political executives were not able to secure convictions made sedition an unattractive law.

In India, however, despite the Supreme Court reading down the law in 1962, its use has been on the rise. The police seem to be going by the Indian Penal Code’s [IPC] definition of the law and not the 1962 court verdict. Although it must be mentioned that the majority of cases that get registered under Section 124A of the IPC do not approximate even to the IPC definition of the offence.

In other countries, the latter half of the 20th century witnessed an assembly of new laws to criminalise political dissent; anti-terror legislation has been the most significant among them and has replaced the sedition law in terms of use. It is not that the disuse of sedition has upheld the right to free speech in these countries, but it certainly no longer makes defaming the government an offence. In India, on the other hand, there is a reproduction of sedition-like provisions in the anti-terror legislation. The Unlawful Activities (Prevention) Act, 1967, criminalises disaffection against India under Section 2(o) of the Act, which is also the crime of sedition.

In your book, you express discomfort with the Indian understanding of sedition as “deshdroh”. Can you explain?

Sedition is an offence against the government, which appears in the IPC as an offence against the state. Deshdroh is an act against the nation, which cannot be equated with the government. Do we want to believe that the government is the nation? The increasing use of sedition in the so-called cases of “anti-national” utterances has contributed to a popular translation of sedition as deshdroh, and clearly it works to the advantage of the political authorities who use the law. Sedition has an anti-colonial lineage; it was an act of political opposition against unjust and undemocratic authority in India.

What does “disaffection” mean under the sedition law?

It means incitement of feelings such as hatred, contempt, enmity and disloyalty against the government. The sedition law was introduced in the IPC in 1870 and the original Section did not explain the word disaffection. In fact, an explanation to the Section read that criticism of the government to support it against subversion was not disaffection. In the succeeding years, there were not many successful prosecutions. The authorities believed that the word disaffection had been misunderstood and the judges were interpreting disaffection as nothing short of incitement to subversion. The law had been introduced primarily to proscribe the freedom of the indigenous press, in which the authorities were not successful. So the law was amended in 1898 and the earlier explanation was removed; instead now the explanation mentions that disaffection includes all feelings of disloyalty and enmity against the government.

In 1962, in Kedar Nath Singh vs State of Bihar, the Supreme Court, hearing the case in appeal against a Patna High Court order, held that all forms of expressions that incited disaffection could not be termed as sedition unless the expression had the tendency to incite violence or disorder in society. Kedar Nath’s speech, against the ruling Congress government in Bihar, was interpreted as having a tendency to incite violence; hence he was held guilty. He had used abusive terms against certain Congress leaders and the word “revolution” in his speech. The court’s reasoning was that inciting people to revolution was also inciting people to violence because it imported the idea of violence in public imagery.

Was the constitutionality of Section 124A of the IPC challenged in the Kedar Nath case?

Before Kedar Nath, in 1954, Ramnandan, a communist, had been convicted of sedition by a sessions court for making a speech in Basti, Uttar Pradesh. The Allahabad High Court heard the case in appeal where Ramnandan had challenged the constitutionality of Section 124A. It was a progressive judgment that struck down the law of sedition, saying that it was not constitutional to restrict the freedom of expression because sedition was not one of the reasonable restrictions mentioned in Article 19(2) of the Constitution. In 1951, the first amendment to the Constitution inserted the term “public order” to the Section on reasonable restrictions. Sedition was then interpreted as an offence against public order and 124A has consequently made a valid restriction on the freedom of speech. The Allahabad order, however, stated that there was no connection between disaffection and public order and what may be against the interest of the government may not be against the interest of public order and national security. This was overruled by the Supreme Court.

Have there been convictions for sedition?

There have been many cases. At some point, the Ministry of Home Affairs made a statement to the press that there were 72 cases of successful prosecution of sedition since Independence. But when I filed an application under the Right to Information Act pertaining to this news item, the Ministry denied it. Members of Parliament have posed questions on the floor of the House to quantify the use of the law. Interestingly, the Law Commission had taken up the task of reviewing the law and was to come out with a detailed report on how to reduce the ambiguities in the law, but in July 2018, the Ministry responded by saying the report was still awaited.

In August 2018, the 21st Law Commission circulated a consultation paper on the last day of its tenure. It is a progressive paper and seems to suggest that the sedition law is being grossly misused and is not serving its intended purpose. But there is no follow-up, and responses, if any, would be accepted by the succeeding Law Commission, which did not author the paper. This is under the garb of democracy; political authorities have been giving an impression that the law would be reviewed and its abuse would be curbed but nothing is actually achieved.

In 2014, the National Crime Records Bureau (NCRB) started compiling data on sedition cases. How do you explain this?

According to the NCRB, there was no political pressure to count offences against the state. One can see a rise in the use of the law since 2014. Although the data for 2013 are not available, the NCRB has disclosed that the number of people in custody pending trial or bail by the end of 2013 was only nine, but in 2014 the number of fresh arrests went up to 58. One also sees a pattern in its use where there is an escalation of the number of times sedition is used in cases of “anti-national” utterances such as not standing up when the national anthem is played, wearing T-shirts with “ISIS” on it and using the word mujahideen. Although we have had complaints filed, such as those against Aseem Trivedi or [Delhi Chief Minister] Arvind Kejriwal, earlier, what is glaring now is the identity of the complainant. In most cases, the police have registered the FIR [first information report] on the complaint of right-wing groups such as the Akhil Bharatiya Vidyarthi Parishad, the Bajrang Dal, the Bharatiya Yuva Morcha or the local units of the Bharatiya Janata Party.

The argument before the court is that mere misuse of law cannot be the ground for doing away with the provision to deal with sedition.

In 2016, when the advocate Prashant Bhushan filed a public interest litigation [PIL] petition in the Supreme Court citing the Kudankulam cases where thousands of people [about 6,800] had been charged with sedition and waging war and other such charges to show how the law was being misused, the Supreme Court said that the guidelines for using the law of sedition had been laid down in 1962 and that the court did not feel the need to do so again. The PIL had demanded that before a complaint was filed and arrests were made under the law of sedition, police officials should ascertain whether it qualified as sedition at all. But the Supreme Court was not willing to engage itself with that demand. Technically, the court may not look at the law and strike it down only because of its misuse. But if one sees that the wrong application of the law is a result of its ambiguous wordings, then the court can’t step back and say that we have fulfilled our responsibility in 1962. The fact remains that the 1962 verdict, which established that seditious utterances are those having the “tendency” to incite violence, did not define the word tendency at all. The judiciary cannot ignore the fact that we are faced with a situation where the law is constantly being applied in cases that have nothing to do with expressions against the government, and even in cases of political expressions made against the authorities, there is no adequate marker to judge whether the incitement can lead to violence or not.

A comparative perspective here is insightful; courts in other democracies such as the United States and England have evolved criteria that clearly lay down what incitement to violence means and when a speech can be criminalised. We don’t have such clarity.

Was there a Tamil Nadu government sanction in the case of Kudankulam? If yes, how can a State give sanction to a case where so many people were involved?

Kudankulam is complicated because there have been many FIRs, many charges and other dynamics at play. These are cases of open FIRs with thousands of unnamed accused. There are three villages in Tirunelveli district where practically everyone either is named as an accused or, under the trap of those nameless FIRs, could be implicated any moment. In most cases, there was no charge sheet. The Supreme Court and later the Madras High Court in 2014 intervened in the matter and asked the Tamil Nadu government to withdraw the criminal cases; some were withdrawn but others still remain.

This is true of sedition cases in other places, too, such as in the case of Jharkhand’s Pathalgarhi movement where some people have been named in FIRs along with close to 1,500 unnamed others. In Pathalgarhi, the messages written on stone erections, which basically quote sections of the Constitution relating to the 5th Schedule, have been interpreted as seditious and charged with attacking the sovereignty of the state. It is bizarre that people who liked a Facebook post supporting the movement have also been named in the FIR. How does that become incitement to violence?

How is the requirement of sanction by the executive fulfilled before a prosecution for sedition is launched? How does a sanctioning authority apply its mind to decide whether a case of sedition is made out or not?

The government’s sanction is required for offences against the state [Chapter VI of the IPC] and other offences such as those relating to public tranquility. [The Jawaharlal Nehru University student] Kanhaiya Kumar’s case will be interesting to see how this is done. In this case, unless the State government gives sanction, the Delhi court cannot take cognizance of the charges against the accused. Delhi government officials have been quoted in newspapers as saying that they have not had the experience of giving sanction for prosecution relating to sedition and are, therefore, proceeding with caution and consulting the Law Minister. It is to suggest that it is the duty of the government to apply legal reasoning before granting sanction for prosecution to see whether there is a case. The Code of Criminal Procedure also says that the government, before granting sanction, may conduct a preliminary investigation. One cannot then expect granting sanction to be a mechanical exercise.

What exactly has been the trigger in countries where sedition has been abolished as an offence?

In the case of England, there was no trigger. There have not been too many countries that have abolished sedition but we have cases where the law has been lying completely defunct in many countries. Australia’s case is interesting where the law was not repealed but the word sedition has been abolished. They have replaced the word sedition with urging violence. So, there have also been such ways to manipulate the political scene.

But England is a clear case of abolition. The law was last used in the 1970s against the Irish rebels. When it was finally abolished in 2009, there was not really a movement behind it. The free speech groups in England, which I interacted with, said they decided to get a Member of Parliament table the Bill for abolition after it was pointed out in an accusatory tone by a foreign delegate in one of the international meetings that England also retained archaic laws such as sedition. So, for them it was completely an exercise in image cleansing, that we are a country that would not proscribe free speech in the name of sedition. In Malaysia, it has not been abolished. In fact, time and again there have been reports on how the government has been denying the use of sedition, yet fresh cases are being registered.

In India, how can a movement be built for repealing the offence of sedition from the statute book?

It is difficult because in India it is such an agile and politically viable law for political authorities. Why would any government want to give up the use of a law that allows it to crush political dissent? When a democratic government violates democratic rights of people, it uses the camouflage of the national interest. In the U.S., sedition was not criminalised under a permanent federal law until 1940. The laws against sedition were war-time enactments that lapsed after the period of turmoil was over. After the formation of the Communist Party of America, the U.S. Congress debated having a permanent law of sedition many times but the governments were weary of being accused of criminalising dissent. However, with increasing animosity with the Union of Soviet Socialist Republics, once Communism had been established as the “enemy” a permanent law against sedition called the Smith Act was enacted in 1940 and used rampantly against members and supporters of the Communist Party. In India, the acceptance of the law and the routinisation of its use is not criticised and of course this is attributed to the fact that sedition in India is understood as deshdroh. It would take extraordinary courage, political will and, above all, respect for democracy for any government to repeal the law. It would mean giving up the shield acquired over time against any sort of political criticism.

But, it is for the people to recognise the end towards which successive governments have been using the law in the name of penalising deshdroh.

Does the hope lie with the judiciary then?

The judiciary can read down the law. If it takes an extraordinary step, it may strike it down, which is unlikely if the executive resists as here is a law in which the executive’s interests are directly at stake. The onus is on Parliament to repeal it, otherwise it will continue to serve as a tool of harassment against people.

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