Sen and Geelani

Mahatma Gandhi coming out of the Dum Dum central jail in Kolkata after meeting political prisoners in March 1938. When the question of prosecuting Gandhi came up before the government of the then Bombay Presidency in 1921, two of the Governor's Councillors warned against prosecution. - THE HINDU ARCHIVES

The laws of sedition are a relic of government by monarchy'.

THERE is no greater nonsense talked about the Attorney-General's duty [to prosecute] than the suggestion that in all cases the Attorney-General ought to prosecute merely because he thinks there is what lawyers call a case'. It is not true, and no one who has held that office supposes that it is. Sir John Simon, who had held the office of Attorney-General, was speaking in the House of Commons on December 1, 1925, in the context of the arrest on October 12 and 22, 1925, of 12 leading members of the Communist Party. They were charged with conspiracy to publish seditious libel.

Simon added that in the discharge of this duty, the Attorney-General should receive orders from nobody. But consult he may; indeed he must. I should regard him as a fool if he were to start on his own motion prosecutions which involve grave matters of public concern treason, sedition, corruption and the like if he did such a thing without knowing that, in the view of his colleagues, public policy was not offended by undertaking such prosecution.

Public policy is a concept antithetical to partisan politics. In British parlance, the words party political are used to distinguish partisanship from the word political which has a different significance the political impact of a decision on society and the state, not the government of the day. That is public policy.

In the House of Commons on January 29, 1951, another Attorney-General, Sir Hartley Shawcross, cited Simon's dictum and his censure of the fool who ignores public policy while launching a prosecution. The Attorney-General must not decide such a matter as a party politician but in a quasi-judicial way. Prosecutions may include a question of public policy or national or sometimes international concern.

To cite an instance, a painting or a photograph may be obscene, but if a significant section of society, especially the artistic fraternity, regards it as a piece of art, would it make sense to launch a prosecution and make a martyr of the artist or a photographer? The Attorney-General may have to have regard to a variety of considerations, all of them leading to the final question would a prosecution be in the public interest, including in that phrase, of course, in the interests of justice? Adequacy of evidence is an important factor. But other factors are as important.

The same considerations govern withdrawal of prosecutions. A case is not to be withdrawn because the party in power wishes to protect its own. It can, sometimes must, be withdrawn if it creates popular upheaval. The same considerations govern commutation of death sentences. Everyone knows that there will be an upheaval in Kashmir if Afzal Guru is executed. Everyone knows also that upheaval is just what the Bharatiya Janata Party (BJP) wants in order to crush it.

The furore over the savage sentence awarded to Binayak Sen should prompt serious reflection on the state of our charged political climate. Our sedition laws are acquiring the same context and colour as the anti-blasphemy laws elsewhere. One wishes there was similar furore over the clamour to prosecute the Kashmiri leader Syed Ali Shah Geelani and the writer Arundhati Roy. The court which ordered the launch of a prosecution for sedition against them overlooked the established factors which a prosecution should bear in mind in such cases. It is not a clear-cut case of murder, burglary or embezzlement which the police omit to investigate and prosecute.

Given the state of the evidence, the case against Binayak Sen ought never to have been launched. One hopes that his appeal is heard soon and decided expeditiously. Prosecuting Arundhati Roy, deservedly admired for her brave dissent, will shock the national conscience. Prosecuting Syed Ali Shah Geelani will galvanise the separatist sentiment in Kashmir. He is respected alike for his courage, integrity and impeccable manners in contrast to which the manners of many of our politicians reveal them to be boors.

The prosecution will, indeed, be welcomed by the separatists once the accused turn the tables on the state in the time-honoured tradition of political trials for sedition and worse the Tilak trials, the joint trial of the Ali Brothers and the Shankaracharya, Maulana Azad's trial, Gandhi's trial, the trial of Communist leaders in the Meerut Conspiracy Case, and the INA trial.

Ignorance of history is matched by ignorance of the law. The Constitution of India was framed in 1949 when plebiscite in Kashmir was official policy. How could Kashmir's secession have been arranged constitutionally if the plebiscite had gone against India? Girja Shankar Bajpai, B.N. Rau and V.K. Krishna Menon explicitly assured the U.N. Commission for India and Pakistan and the Security Council that, in that event, procedures will be adopted under our Constitution to give effect to the popular verdict. Plebiscite has ceased to be official policy. Indeed, it is dead politically as a practical proposition. But the Constitution has not changed. As this writer has established in detail, it is perfectly open to an Indian citizen legally to demand or advocate plebiscite in Kashmir just as he can advocate that India should write off the Aksai Chin in order to settle the boundary dispute with China (see the writer's article, Is it Constitutional to Ban Demand for Plebiscite in Kashmir?', Economic & Political Weekly, March 26, 1994). To go no further the proviso to Article 253 of the Constitution itself requires the consent of the State government to any decision by the Government of India affecting the disposition of the State of Jammu & Kashmir. Thus a decision on the State's disposition is yet to be made, while the Simla Agreement envisages a final settlement of Jammu & Kashmir.

Arundhati Roy painstakingly compiled 13 solemn and explicit pledges by Jawaharlal Nehru to hold a plebiscite in Kashmir plus one by Krishna Menon. To its credit, The Hindu published it in full on November 28, 2010. The citizen is only bound by the law, he is not bound to imitate Nehru's somersaults.

It is not difficult to assess the damage to the peace process, to public sentiment in Kashmir and to the cause of justice itself which a prosecution in this case would inevitably cause. It was sheer arrogance of power which was exhibited in Binayak Sen's case, inflicting grave injustice after his arbitrary detention. It is blind hate which drives the BJP to demand Arundhati Roy's and Syed Ali Shah Geelani's prosecution.

Prosecution of Gandhi

A 90-year-old precedent bears recalling. When the question of prosecuting Gandhi came up before the government of the then Bombay Presidency, two of the Governor's Councillors warned against a prosecution. I am strongly of opinion that any prosecution of Mr. Gandhi would be a great political blunder, minuted Sir Ibrahim Rahimtullah on October 13, 1921. Two days later, Sir Chimanlal Setalvad, whose political sagacity awaits the recognition that is its due, wrote: I entirely agree with Sir Ibrahim. We have by instituting prosecution against the Ali brothers rehabilitated them just at the time when they and their movement were getting discredited and their party was at its wit's end as to what to do next. Let us not take a similar step with regard to Gandhi. He is pathetically inviting arrest and the best way to discredit him is to decline to take any notice of him. Moreover there is a great difference between the Ali brothers and Gandhi. To my mind it will be the greatest political blunder to prosecute Gandhi. And I think we should warn the Government of India and request them to see that no other government undertakes such a prosecution. Any action of that character by the government of any other province will have a very bad effect on the whole of India and specially on this presidency.

The Liberal leader Sir Tej Bahadur Sapru, who was then a member of the Viceroy's Executive Council, bared his doubts to his colleague, Sir William Vincent, the Home Member, on November 8: The question as to whether we should arrest and prosecute him is not so much a question of law as it is one of political expediency. To put it otherwise, it is a question of choice between two evils the evil of prosecuting him now and the evil of letting him alone for the present.

Consider this case. On October 31, 1984, the day Indira Gandhi was assassinated, an assistant and a clerk in the Education Department came out of their respective offices after duty hours and raised these slogans in a crowded place in front of Neelam Cinema in Chandigarh. Khalistan Zindabad, Raj Karega Khalsa and Hindustan Nun Punjab Chon Khadke Chhadenge, Hun Mauka Aya Hai Raj Kayam Karan Da. (Roughly translated as We will force Punjab out of India. Now is the time to assume power.') They were charged with sedition and convicted. The Supreme Court acquitted them on appeal. ( Balwant Singh vs State of Punjab (1995) 3 Supreme Court Cases 214.) Remember those were unusually tense times and the slogans were raised in a crowded place. What possible damage can speeches at a seminar or colloquium do? The slogans were not raised with the intention to invite people to create disorder, nor did they create any law and order problem (page 218, paragraph 8).

Archaic Law

The law of sedition is archaic. The courts adapt it to modern times. Political dinosaurs resent that. Prof. Thomas I. Emerson noted in his classic The System of Freedom of Expression that the laws of sedition are a relic of government by monarchy. They are designed to destroy political opposition. Experience has proved that they are not needed to protect internal security and are incompatible with the democratic process.

Media Law is a veritable encyclopaedia authored by Geoffrey Robertson Q.C., one of the foremost advocates of free speech, and Andrew Nicol Q.C. (Penguin, 2002 fourth Edition).

Since the law is ancient it still remains broadly worded. Courts try to restrict its meaning. They point out that English rulings stress not only the presence of intention but also that incitement to violence alone is not enough. It must be violence or defiance for the purpose of disturbing constitutional authority. They hold that it violates Article 10 of the European Convention on Human Rights.

By the same token, Section 124 A of the Indian Penal Code, which defines sedition, violates the fundamental rights to freedom of speech and expression. Nearly half a century ago, the Supreme Court upheld its validity by giving it a restricted meaning ( Kedarnath vs State of Bihar, AIR 1962 Supreme Court 955).

It sorely calls for a review. Section 124 A was originally Section 113 of Macaulay's Draft Penal Code of 1837-39. Omitted in 1860 when the Code was enacted, it was restored in 1870. In 1898, a single Explanation was replaced by the three in force now.

In a masterly judgment by the great judge, draftsman of the Government of India Act, 1935, and a true constitutional lawyer, Sir Maurice Gwyer, Chief Justice of the Federal Court, held that public disorder, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence. Sir M. Zafarullah Khan and Justice S. Varadachariar concurred ( Niharendu Dutt Majumdar vs The King Emperor AIR 1942 F.C. 22.). Predictably, the Privy Council disapproved of it in Emperor vs Sadashiv Narayan (74 India Appeals 89, AIR 1947 P.C. 82). The Supreme Court followed the Federal Court. The word sedition occurred in Article 13(2) of the Draft Constitution but was dropped in Article 19(2). The Supreme Court held that the words used must reflect the idea of tendency to public disorder by the use of actual violence or incitement to violence. Some of the observations made by the court are wide of the mark and were unnecessary. The case was decided on January 24, 1962. A review is called for. Section 124 A also needs to be redrafted better still, deleted. No court in the future will need to wrestle with words like theologians wrestling with ancient texts to adapt them to modern times.

As Sir Maurice Gwyer remarked, Many judicial decisions in particular cases which were no doubt correct at the time when they were given may well be inapplicable to the circumstances of today.