‘Sedition’ in freedom struggle

The arguments by British members of the Viceroy’s Council, which passed the Vernacular Press Act in 1878 to suppress “seditious” writing in Indian languages, mirror the apologies for sedition cases foisted on dissenters in India today.

1908: An image of the proceedings of Bal Gangadhar Tilak’s second trial for sedition in the Bombay High Court. Tilak was sentenced to six years’ transportation in this case.

The history of India’s struggle for freedom from British rule is the history of the repressive laws of sedition in India. British rule rested on the army, cushioned by civil administration, including the administration of justice. The Raj under the East India Company began with the trial of Maharaja Nanda Kumar (1775), a clear case of judicial murder. He had openly challenged the East India Company’s first Governor General Warren Hastings. Edmund Burke impeached Hastings unsuccessfully. Hastings fell out with Chief Justice Sir Elijah Impey, who issued the first writ of habeas corpus in India. It was an exercise in ensuring accountability to the law. On April 1, 1829, Sir Peter Grant, the Chief Justice of the Bombay High Court, ordered the doors of the court closed because the Governor, Sir John Malcolm, had refused to enforce the writ of habeas corpus the court had issued. They were opened only after the Privy Council reversed the judgment (1 Knapp’s Report Privy Council 1-29).

The East India Company brought to trial the last Mughal Emperor Bahadur Shah Zafar in 1858 after the Mutiny. It was a farce like the Nuremberg Trial. He was a sovereign himself, not a subject of the British Crown.

Bengal State Prisoners Regulation 111 of 1818 is the illegitimate parent of Article 22 of India’s Constitution and its offspring, the laws of preventive detention. The Seditious Publications Act 11 of 1882 was a forerunner of much else. So was Act No. XIV of 1857after the Mutiny. Its object was to provide for the trial of persons who sought “to excite mutiny and sedition”.

Taming the ‘vernacular’ press

The Indian Penal Code, strangely enough, did not provide for sedition though British opinion in India was all for it. In India, sedition was rooted in racism, as revealed by a a book written by an English barrister at the Calcutta High Court. A Treatise on the Law of Sedition and Corporate Offences in British India by Walter Russell Donagh (Thackers, Spencer & Co., 1911) is a painstaking work.

He wrote: “In the year 1878 the Indian press again engaged the attention of the government, and this time in a somewhat more prominent manner. The circumstances which led to the passing of what is known as the Vernacular Press Act are very fully set forth in the speech of the Hon’ble Member who introduced the Bill. Sir Alexander Arbuthnot in moving its introduction explained the ‘considerations which influenced the government in bringing forward this measure’ as follows: ‘The object of the Bill,’ he said, ‘is to place the native newspapers, or, to speak more correctly, the newspapers which are published in the vernacular languages of India, under better control, and to furnish the Government with more effective means than are provided by the existing law, of repressing seditious writings which are calculated to produce disaffection towards the government in the minds of the ignorant and unenlightened masses. Another object is to check a system of extortion to which some of our native feudatories, and many of our native employees are exposed by the rapacity of unscrupulous native editors.’

“Another member of the Council said, ‘The poor and ignorant millions are told that all their misfortunes are due to England and the English, who cruelly and heartlessly oppress them, and the prospect of better days is held out to them if they could only be quit of their oppressors. Thus their minds are poisoned and their contentment destroyed, and they are left ready tools for plotters and conspirators. Believing that the evil is great and the necessity for its immediate abatement urgent, and that the remedy proposed is the right one, I have no hesitation in voting for the Bill.’

“Indians were more excitable than the English, the theme ran. What was good for Britain may not be good for India under British rule. A member of the Council said, ‘It is indeed, in my opinion, to our own system of education that we owe all the trouble. I have long been convinced that it is thoroughly unsound. We are turning out by scores of thousands young men who are trained only in words, look mainly for government employment, and failing to get it become, as the Maharaja of Travancore described them, “a host of discontented, disobedient, and sometimes troublesome young men”.

“‘This is the class that writes for the Native Press, perorates on platforms, and generally vents its spleen upon the government which has not been able to find appointments for more than a fraction of its members. To honest, well-informed criticism no English government would ever object. But every government has the right to object when its critics wander off from criticism to calumny. ...

“‘No government such as ours in India can afford to allow the minds of an ignorant and credulous oriental population to be gradually poisoned and embittered by persistent calumny of the government and all its measures. If these sections lead to a more careful, well-considered and responsible journalism, they will confer a benefit not only on the state and the public, but on the journalistic profession itself.’” We hear Narendra Modi & Co. talk in the same vein.

But the law was being altered and extended while there was no occasion for it. To this it was answered: “No one who candidly and carefully reads the consentient decisions of the Calcutta, Bombay and Allahabad High Courts can come to any other conclusion than this—namely, that in our new section we are keeping well within the existing law, though, we are expressing that law in less ambiguous language." “Then it is urged,” the Hon’ble Member continued, “that the proposed clause goes further than English law, and again some passages in Sir Fitzjames Stephen’s speech are referred to. All I can say is this. If in 1870 he thought that an appeal to force was a necessary constituent of sedition, he afterwards changed his mind. After he had served on the Criminal Code Commission, which was composed of some of. the most distinguished judges of modern times, he published his Digest of the English Criminal Law . In Article 96 of that Digest he states the English law in the clear and precise terms which I read to the Council on the 21st December. There is nothing in that article, and there is nothing in the almost identical article framed by the Criminal Code Commission, to suggest that an appeal to violence is a necessary factor in the offence. I take it that the offence is complete, both in India and England, if it be proved that the offender has attempted to excite disaffection towards the government. It is not necessary that he should himself appeal to force. What he does is to excite or attempt to excite feelings of discontent which make people ready for mischief should the opportunity arise.”

“But after all,” he added, “these arguments are more or less academic. No one in his senses would contend that because a given law is good and suitable in England, it is therefore good and suitable in India. If a rule of law exists in England we may consider whether it is suitable to India, but the answer to the question must always depend on the conditions which prevail in India. How much licence of speech can be safely allowed is a question of time and place. If I smoke a cigar on the maidan it pleases me, and hurts no one else. If I smoke a cigar in the powder magazine of the Fort, I endanger the lives of many, and do an act well deserving punishment. Language may be tolerated in England which it is unsafe to tolerate in India. ...”

Sedition law in theory & practice

Tilak’s two trials (1897 and 1908) for sedition exposed the falsehoods in the apologies of the draftsmen of the offence of “sedition”, which was to be later inserted in the Indian Penal Code. All the top leaders of the Indian National Congress were convicted of sedition—Mahatma Gandhi (1922), Maulana Azad (1922), Jawaharlal Nehru (1921, eight times.)

There is, however, one case which Tilak won. On July 22, 1916, in the Court of the District Magistrate of Poona, information was lodged against Tilak citing his speeches. He was asked to show cause why a bond of Rs.2,00,000 for “good behaviour” for one year should not be required of him under Section 105, 112 of the Criminal Procedure Code. Mohammad Ali Jinnah went all the way to Poona to defend Tilak but lost. On August 12, 1916, the Magistrate held against Tilak. Jinnah moved the High Court and won. The order was quashed.

A century later, the authorities in Kashmir demanded exactly such a bond from almost the entire political class. Sedition triumphs in India under Modi Raj. Jawaharlal Nehru said in Parliament on May 29, 1951: “Take again Section 124A of the Indian Penal Code. Now so far as I am concerned that particular section 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.”

Nevertheless, in 1962, the Supreme Court of independent India upheld Section 124A of the Penal Code, which defines the offence of sedition, albeit with a tortuous proviso that made no sense. It is deeply worrying that the BJP government, headed by Narendra Modi, should use Section 124A to imprison student leaders and prosecute political leaders.

Section 124A had once been Section 113 of Thomas Babington Macaulay’s Draft Penal Code of 1837, but it was omitted in the Indian Penal Code when it was enacted in 1860. It was introduced through an amending Bill by the Law Member of the Governor General's Executive Council, Sir James Fitzjames.

Originally, Section 124A penalised excitement of “disaffection” alone. The 1898 amendment added “hatred or contempt”. The warning was clear—you must neither hate the British rulers nor despise them. This is the form in which Section 124A still exists on our statute book. The British era judge Arthur Strachey had warned: “Disaffection may be excited in a thousand different ways. A poem, an allegory, a drama, a philosophical or historical discussion may be used for the purpose of exciting disaffection just as much as direct attacks upon the government. You have to look through the form, and look to the real object: you have to consider whether the form of a poem or discussion is genuine, or whether it has been adopted merely to disguise the real seditious intention of the writer.” A spate of repressive press laws followed this judgement. The mere mention of the word “sedition” aroused in Indians the very emotions of hatred and contempt for the British that Section 124A sought to forbid. Emotions or opinions cannot be stifled by legislation. The trials for sedition that followed further aroused nationalist feelings.

In Romesh Thapar vs State of Madras (1950), Justice Patanjali M. Sastri said: “It is also worthy of note that the word ‘sedition’ which occurred in Article13(2) of the Draft Constitution prepared by the Drafting Committee was deleted before it was finally passed as Article 19(2)... Deletion of the word ‘sedition’ from the draft Article 13(2), therefore, shows that criticism of government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security or tend to overthrow the state.”

The Press Commission’s report noted the ruling of the Punjab High Court in Master Tara Singh’s case in 1952. It was held that Section 124A had become void as it contravened the right to freedom of speech and expression guaranteed by Article 19(1) and that the section was not saved by Article 19(2), under which only those utterances could be penalised which undermined the security of the state or tended to overthrow the state. Sir Eric Weston, the distinguished District and Sessions Judge who eventually rose to become one of the most respected judges of the Bombay High Court and then the Chief Justice of the Punjab High Court, said in the course of the judgment: “The section has become inappropriate by the very nature of the change which has come about, viz., India becoming a sovereign democratic state.” It recommended repeal of Section 124A. Headed by Justice G.S. Rajadhyaksha of the Bombay High Court, the Press Commission had among its members men of high stature such as C.P. Ramaswamy Iyer, Achariya Narendra Dev and Dr Zakir Hussain.

Courts’ role

When the Constitution of India came into force on January 26, 1950, sedition did not figure in Article 19(2) among the grounds on which the fundamental right to freedom of speech and expression (Art. 19 (1) (a)) could be subjected to “reasonable restrictions” by law. Its history and case law suggested clearly that it could not be stretched to fall within “public order” or “incitement to an offence”.

The author of Section 124A, Stephen, had noted that “the Penal Code contained no provision at all as to seditious offences not involving an absolute breach of the peace”.

After the Constitution came into force, the High Courts did the correct thing—strike down Section 124A as being violative of Article 19(2). Courts exist to erase blots on the statute book. It is no function of a court of law to recycle statutory garbage. As early as in Romesh Thapar vs State of Madras Justice Sastri had drawn pointed attention to the deliberate omission of sedition in the Constitution. That was message enough for the High Courts. A full bench of three judges of the Allahabad High Court unanimously held Section 124A to be void in Ram Nandan vs State . The bench comprised Justices M.C. Desai, R. N. Gurtu and N.U. Beg, each of whom wrote a judgment of considerable learning and cogency of reasoning. No precedent, English, American or Indian, was overlooked. Justice Desai was against “importing words in S.124A” and held that “the right to spread disaffection against the government or any other person is included in the right to freedom of speech and expression guaranteed by the Constitution...danger to public order is not an ingredient of the offence”. He also cited the Press Commission’s recommendation for its repeal.

Concurring, Justice Gurtu noted the omission of “sedition” in Article 19(2), while Justice Beg surveyed the legislative process which led to the enactment of Section 124A in 1870 and its amendment in 1898.

Then on January 20, 1962, came the judgment of the Constitution Bench of the Supreme Court in Kedar Nath’s case. In effect, it restored a clause deleted in the Constitution.

England's history is rich in trials for sedition, which shaped the country and bestirred its people.

The volumes of State Trials record the struggle for freedom of speech; most notably, in the magnificent speech by the greatest advocate of all time of this fundamental right, Sir Thomas Erskine, in defence of Thomas Paine’s The Rights of Man in 1792.

In 1977, Britain’s Law Commission recommended the abolition of the law of sedition. In 1984, Lord Denning expressed the view that “the offence of seditious libel is now obsolete”. No one has cited Stephen on sedition as approvingly as Chief Justice B.P. Sinha did in Kedar Nath’s case. The authoritative work, Media Law: The Rights of Journalists and Broadcasters by Geoffrey Robertson, Queen’s Counsel, and Andrew Nicol, Queen’s Counsel, opined that Stephen’s definition of seditious libel was “frighteningly broad and the crime has been used in the past to suppress radical political views. Even in the twentieth century it was used against an Indian nationalist and against Communist organisers. However, the post-war tendency has been to narrow the offence considerably. There has been no prosecution for sedition since 1947, and the offence now serves no purpose in the criminal law. It is hard to see how it is necessary in a democratic society or proportionate to any legitimate aim.”

Sedition was indeed abolished in the United Kingdom through the Coroners and Justice Act, 2009. The then Justice Minister, Claire Ward, said at the time of the Act’s enactment: “Sedition and seditious and defamatory libel are arcane offences from a bygone era when freedom of expression wasn’t seen as the right it is today. Freedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticise the State is crucial to mainta ining freedom.”

According to Claire Ward, “The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom.” Obviously, she had India in mind.