Law on sedition

Sedition vs free speech

Print edition : March 18, 2016

Bal Gangadhar Tilak. His trial for sedition in 1908 resulted in six years' rigorous imprisonment and transportation. Photo: The Hindu Archives

Mahatma Gandhi. He told the judge in 1922 that Section 124A was the prince among IPC sections designed to suppress liberty. Photo: The Hindu Archives

Dr Binayak Sen, who faced sedition charges some years ago apparently because of his criticism of the Chattisgarh government's support of Salwa Judum. Photo: Sanjoy Ghosh

Vaiko. The MDMK leader was prosecuted on sedion charges in 2009. Photo: T. Singaravelou

Recent instances of the law enforcers’ recourse to the law on sedition point to its inherent potential for abuse.

The filing of sedition cases by the Delhi Police against those accused of raising anti-India slogans at events organised to mark the hanging of Afzal Guru has led to an unintended consequence. Although the police action is an unconscionable attack on the freedom of expression of those who organised the event to mould public opinion on the death penalty, what followed was a healthy discourse on the past, present and future of the law of sedition.

Many people believe that the Jawaharlal Nehru University (JNU) Students Union president Kanhaiya Kumar and Professor S.A.R. Geelani (who was acquitted by the Supreme Court in the Parliament attack case) are not guilty of raising anti-India slogans. Both the accused are currently in judicial custody and their lawyers will try to convince the courts that the police allegation is without basis and that their acts do not amount to sedition as defined under Section 124A of the Indian Penal Code.

Section 124A makes it an offence to bring into hatred or contempt, or excite disaffection towards, the government established by law in India and seeks to punish it with imprisonment for three years or for life and with a fine. The provision qualifies the rigour of the law by adding three explanations. The first explanation worsens the rigour by stating that the expression “disaffection” includes disloyalty and all feelings of enmity. Explanations 2 and 3 exempt from the purview of the law mere criticism of the government or the administration without exciting hatred, contempt or disaffection.

Kanhaiya Kumar’s only offence appears to be that he was present when certain slogans were raised by some people who were critical of the hanging of Afzal Guru. The transcript of his speech he made on February 10 at JNU, however, shows that he, in fact, denounced the unidentified people who raised the slogan of “Pakistan zindabad”.

Yet, an analysis of Section 124A as it has evolved shows that the mere raising of this slogan at a public event falls short of attracting its provisions.

Geelani was arrested on February 16 for an event organised at the Press Club of India, New Delhi, on February 10 to commemorate Afzal Guru. The police alleged that hatred was generated against the government at the event and that the intention was to create disloyalty among the people of India.

The police relied on the clips of news channels and the CCTV footage of the Press Club to allege that slogans were shouted hailing Afzal Guru and another terrorist, Maqbool Bhat, who was hanged when Indira Gandhi was the Prime Minister. There is nothing to show that Geelani himself raised these slogans. On the contrary, he claimed that he disowned them and had even tried to stop those raising such slogans. Whether or not he raised these slogans, these do not ipso facto constitute sedition.

The cases of Kanhaiya Kumar and Geelani are not the only cases in the recent past that have brought to light the inherent potential of Section 124A of the IPC to be abused by law enforcers, with a chilling effect on the exercise of freedom of expression.

Defending the freedom of expression was one of the noble ideals that inspired India’s freedom struggle. Article 51A(b) of the Constitution, dealing with Fundamental Duties, says it shall be the duty of every citizen of India to cherish and follow those noble ideals. Therefore, those who abuse Section 124A of the Constitution against innocent persons are the ones who are truly guilty of violating the Constitution. This constitutional duty also imposes an obligation on the part of every citizen to expose such abuse of law by the authorities in order to defend freedom of expression from unreasonable restrictions indirectly imposed by the State.

In 2011, the Centre for the Study of Social Exclusion and Inclusive Policy, National Law School of India University, Bengaluru, in association with the Alternative Law Forum, Bengaluru, brought out an insightful monograph on “Sedition Laws and the Death of Free Speech in India”.

Tilak & Gandhi

Section 124A was not part of the IPC when it was enacted in 1860. It was introduced through an amendment in 1870.

The monograph traces the contemporary understanding of the sedition law to the interpretation placed on it by Justice James Strachey, who was asked by the British government to preside over the sedition case against Bal Gangadhar Tilak, who was convicted of sedition in 1897 but released in 1898. Tilak’s counsel argued that the so-called seditious articles written by Tilak were consistent with his loyalty to the state. Strachey held that the term “feelings of disaffection” as used in Section 124A meant “hatred”, “enmity”, “dislike”, “hostility”, “contempt” and every form of ill will to the government. The Judicial Committee of the Privy Council upheld his interpretation.

In 1898, Section 124A was amended to reflect Strachey’s interpretation. The terms “hatred” and “contempt” were included along with disaffection. Disaffection was also stated to include disloyalty and all feelings of enmity.

Tilak was again tried for sedition in 1908. Despite a spirited defence from Mohammad Ali Jinnah, his counsel then, the amended Section 124A helped the British judges to sentence Tilak to six years’ rigorous imprisonment with transportation.

Mahatma Gandhi, when he was charged under the Section in 1922, famously told Judge Strangman, who heard his case: “Section 124A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. 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…. I hold it a virtue to be disaffected towards a government, which in its totality has done more harm to India than previous system.” Judge Strangman acknowledged Gandhi’s stature and his commitment to non-violence but still sentenced him to six years’ imprisonment under the law. It is almost an accident that Section 124A survived after India’s Constitution came into force in 1950. The provision must have died a natural death in view of Article 13 of the Constitution, which states that all laws in force in the territory of India immediately before the commencement of the Constitution, insofar as they are inconsistent with the provisions of Part III, dealing with Fundamental Rights, shall, to the extent of such inconsistency, be void.

Those who defend Section124A today must learn from history. The Draft Constitution had included “sedition” as one of the grounds on which the fundamental right to speech could be restricted. But owing to the efforts of K.M. Munshi, the word “sedition” was deleted from the exceptions to the right to freedom of speech and expression under Article 19(2) when it was finalised. T.T. Krishnamachari and Seth Govind Das were other members of the Constituent Assembly who ensured that the word sedition was kept out of the Constitution.

As Parliament was reluctant to specifically declare Section 124A void, despite Prime Minister Jawaharlal Nehru’s unequivocal denunciation in Parliament of the provision, it was left to the judiciary to interpret it. (Nehru described the provision as highly objectionable and obnoxious during the debate in Parliament on the First Amendment of the Constitution in 1951.)

The Punjab High Court in 1951 and the Allahabad High Court in 1959 declared Section 124A unconstitutional. The Supreme Court, however, held it constitutional in Kedar Nath Singh vs State of Bihar, decided in 1962. (Kaleeswaram Raj has dissected the judgment in an article in this issue of Frontline, page 35.) In this case, the Supreme Court held that Section 124A could only be invoked when there is a tendency to public disorder by use of violence or incitement to violence. This is because the other interpretation, authored by Justice Strachey and upheld by the Privy Council, would conflict with the fundamental right under Article 19(1)(a).

The monograph suggests that while the Supreme Court has stayed firm in its opinion on sedition from Kedar Nath onwards, the lower courts seem to continuously disregard this interpretation of the law in many cases.

The monograph further submits that the charge of sedition law being used to stem dissent is not without force. In many cases of sedition, High Courts have granted bail or acquitted the accused for want of evidence.

Bizarre cases

Some of the cases of sedition are bizarre. In 2010, a lecturer, Noor Muhammed Bhat, in Gandhi Memorial College, Srinagar, was arrested because he added questions on the unrest in Kashmir Valley in an examination. He was granted interim bail by the Jammu and Kashmir High Court in 2011.

The Times of India’s resident editor at Ahmedabad, Bharat Desai, faced charges, along with a senior reporter and a photographer, in 2008 for questioning the competence of police officers and alleging links between them and the mafia. The case was dismissed by the court for lack of evidence.

In the case against Sudhir Dhawale, a reputed Dalit social activist and editor of Vidrohi, published from Gondia, Maharashtra, the police alleged that a State Committee member of the banned Communist Party of India (Maoist) had stated in an interrogation that he had given his computer to Dhawale. Dhawale was arrested in 2011. A sessions court acquitted him in 2014.

Binayak Sen, a doctor and human rights activist in Chhattisgarh, allegedly helped courier messages to the Maoist leadership. Dr Sen had criticised the Chhattisgarh government’s support to the vigilante group Salwa Judum. Apparently, this was the reason why the sedition law was invoked against him. Both the trial court and the High Court convicted and sentenced him. Ultimately, the Supreme Court granted Sen bail in 2011 and quashed the sedition charge against him.

Laxman Choudhury, a journalist with the Sambadh newspaper in Odisha, faced prosecution on sedition charges in 2009 for allegedly possessing Maoist literature. His real crime was apparently writing about the involvement of the local police in illegal drug trafficking. He was held for 10 weeks, before being released by the High Court.

Vaiko, leader of the Marumalarchi Dravida Munnetra Kazhagam (MDMK) in Tamil Nadu, was prosecuted in 2009 on sedition charges for his alleged remarks that India would not remain united if the war in Sri Lanka was not stopped.

Piyush Sethia, an environmentalist and organic farmer in Salem, Tamil Nadu, faced sedition charges in 2010 for distributing pamphlets during a protest against the Chhattisgarh government’s support for Salwa Judum. He was released on bail after 23 days in captivity.

NCRB data

The list of cases of misuse of Section 124A given here is not exhaustive. The National Crime Records Bureau (NCRB) records that in 2014, 176 cases of offences against the state were reported. Of these, 47 were reported under section 124A IPC: 18 cases in Jharkhand, 16 in Bihar, five in Kerala, two each in West Bengal and Odisha, and one each in Andhra Pradesh, Assam, Chhattisgarh and Himachal Pradesh.

The NCRB also says that 58 people were arrested for sedition in 2014. Bihar recorded the maximum arrests, 28, followed by Jharkhand, 18.

The NCRB may well provide data regarding the number of persons convicted and sentenced for sedition. The number will, no doubt, be minuscule, thus confirming that the trial and the appellate courts hardly find the evidence convincing enough to sustain the charges. This proves that Section 124A is often a handy tool in the hands of the government to inflict procedural punishment against its critics, just in order to harass, threaten and intimidate.

The future

Gautam Bhatia, in his recent book Offend, Shock or Disturb: Free Speech under the Indian Constitution, explains how the court in the Kedar Nath Singh case ignored another judgment it had given in 1960 in the case of The Superintendent, Central Prison, Fatehgarh vs Dr Ram Manohar Lohia. In that case the court had rejected the argument that encouraging people to break one law—even as innocuous as a minor tax law—could eventually lead to conflagration and revolution. It held that to prevent complete arbitrariness, and to give effect to Article 19(2)’s requirement of reasonableness, there needs to be some test of causation, some understanding of proximity, which courts can use to hold a speaker responsible for the eventual consequences of his speech. The opinion in the Kedar Nath Singh case, in Bhatia’s view, entirely fails to develop such a test. The words “disaffection” or “disloyalty”, which one finds in Section 124A, cannot be interpreted to resemble imminent incitement to public disorder or as a spark in a powder keg.

The Supreme Court, according to Bhatia, came close to developing a proximity test (as opposed to the tendency test) in Balwant Singh vs State of Punjab in 1995, when it reversed the convictions of some men who had raised a “Khalistan Zindabad” slogan at a public place in the immediate aftermath of Indira Gandhi’s assassination in 1984, on the grounds that the slogans raised did not lead to violence.

It is incredible to note that the police and the trial courts miss the similarity in facts between the Balwant Singh case and the recent events held to observe the anniversary of Afzal Guru’s hanging.

The Supreme Court’s judgment in the Balwant Singh case is convincing enough for a trial court judge to dismiss the charge of sedition against the JNU students and Professor Geelani. But the cases, it appears, will drag on so that the process itself will prove to be a punishment for the accused even though the police have no iota of evidence to sustain the charge of sedition.

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