Sedition: Colonial relic

The law of sedition was introduced by the British colonial regime to stifle dissent. The time has now come for a movement against the way in which the current regime is using it.

Published : Mar 30, 2016 12:30 IST

Bal Gangadhar Tilak's second trial for sedition in 1908. He was sentenced to six years' transportation.

Bal Gangadhar Tilak's second trial for sedition in 1908. He was sentenced to six years' transportation.

THE history of India’s freedom movement is the history of the law of sedition in India and its systematic use by the British colonial rulers as a weapon to crush the freedom movement. That history is studded with notable trials of its leaders on charges of sedition. When India became independent, its leaders expressed their loathing of that law, which the British had maliciously inscribed on the statute book.

None expressed the sentiment better than the first and greatest Prime Minister ever—Jawaharlal Nehru. He said in Parliament on May 29, 1951: “Take again Section 124 A 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.” ( Parliamentary Debates ; Volume XII, Part II, Col. 9621; emphasis added, throughout.)

It is a matter of shame that in 1962 the Supreme Court of independent India upheld Section 124 A of the Penal Code, which defines the offence of sedition, albeit with a tortuous proviso that made no sense. It is a matter of disgrace that in 2016 the Bharatiya Janata Party (BJP) government headed by Narendra Modi should use Section 124 A to imprison student leaders and to prosecute political leaders.

The raison d’etre of Section 124 was stated all too clearly in a definitive work on the subject. ( A Treatise on the Law of Sedition and Cognate Offences in British India, Penal and Preventive by W.R. Donogh; Thacker, Spink & Co., Calcutta, 1891.) Donogh, a barrister who practised in the Calcutta High Court, laid bare his motivation at the very outset in his preface. “If an apology be needed for the production of a work of this character, it might be possible to justify it on two grounds. One is the prominence which political offences of this type have assumed in India; the other, the importance of the preventive legislation recently introduced on the Statute-book, which, without prejudice to previously existing measures in pari materia , aims at a better control of the Platform and the Press…. The present work has been designed to accomplish this object.”

Colonialism and racism Section 124 A existed as Section 113 in 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 Fitz James Stephen, on August 2, 1870. He said: “This law was substantially the same as the law of England at the present day, though it was much compressed, much more distinctly expressed, and freed from a great amount of obscurity and vagueness with which the law of England was hampered.” He then went on to state how the law of England stood on this subject. It consisted of three parts. There was first the Statute, commonly called the Treason-Felony Act (II Vic., c.12); secondly, the Common Law with regard to seditious libels; and thirdly, the law as to seditious words.

Section 124 A is, thus, deeply rooted in English law as its very language reveals—“Whoever … 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… or with imprisonment which may extend to three years” plus fine.

The features deserve note. First, no democratic government with any self-respect would demand the affection of its citizens; ruling monarchs do. English law has its origin in the days when the monarch ruled as well as reigned, though it persisted after he had ceased to rule. Sedition was a short step away from treason. Secondly the provision of imprisonment for life reveals the colonial rulers’ mindset. Its purpose was to crush Indian rebels. To Stephen “the phrase ‘liberty of the Press’ was mere rhetoric”. As a small mercy comments expressing disapprobation of official acts and policies were permitted by Section 124 A but with a proviso. Those comments must not arouse any of the dreaded emotions it listed.

This became law on November 25, 1870. It was made even more stringent on February 18, 1898, as a result of Justice Strachey’s ruling on Section 124 A in the first Tilak Case ( Queen Empress vs Bal Gangadhar Tilak ; 22 Bom.112 ). He held that mere excitement or attempt to excite the forbidden emotions sufficed to constitute sedition “even if there is nothing to show that he succeeded” or that “any disturbance” was caused. He was upheld by the Privy Council. Tilak was sentenced to 18 months’ rigorous imprisonment.

On December 25, 1897, a Bill was moved by M.D. Chalmers to amend the general laws relating to sedition and cognate offences “so as to make it efficient for its purposes”. The mover of the Bill said: “Then it is urged, 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. … 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, 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 fairly 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, because in India it is apt to be transformed into action instead of passing off as harmless gas. In legislating for India we must have regard to Indian conditions, and we must rely mainly on the advice of those who speak under the weight of responsibility and have the peace and good government of India under their charge.”

The Lieutenant-Governor of Bengal, Sir Alexander Mackenzie, said: “It is clear that a sedition law which is adequate for a people ruled by a government of its own nationality and faith may be inadequate, or in some respects unsuited, for a country under foreign rule and inhabited by many races, with diverse customs and conflicting creeds. It is impossible in India to accept the test of direct incitement to violence or intention to commit rebellion, and limit the interference of the government to such cases. It is not the apparent intention of the writers or speakers so much as the tendency of the writings or speeches which has to be regarded, and the cumulative effect of depreciatory declamation on the minds of an ignorant and excitable population has to be taken into consideration.”

Thus, Section 124 A is rooted not only in colonialism but also in racism.

Donogh reproduced with enthusiastic approval opinions by other colonial figures in India to the same effect, namely that Indians were an “ignorant and excitable people”—an outlook shared, doubtless, by those who in 2016 slap charges of sedition on university students and political opponents.

Progressively draconian Originally, Section 124 A 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 124 A exists still on our statute book. 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.” There followed a spate of repressive press legislation.

Mention of the word “sedition” aroused in Indians the very emotions of hatred and contempt for British that Section 124 A sought to forbid. Emotions or opinions cannot be stifled by legislation. The trials for sedition that followed further aroused nationalist feelings.

Tilak’s trial stirred people as none before and since did. Defiance came naturally to this brave man. His first trial was in 1897 before Justice Strachey and a jury. The second trial for sedition was in 1908 before Justice D.D. Davar, his counsel in the first trial, and a jury of whom seven Europeans returned a verdict of guilty while the two Indians, both Parsis, returned a verdict of “not guilty”. Justice Davar sentenced Tilak to six years’ transportation. At his third and last trial in 1916 for sedition, he was successfully defended by M.A. Jinnah. He had been ordered to execute a bond for Rs.20,000 “for good behaviour” for “disseminating seditious matter”. Justices Batchelor and Shah quashed the order.

In 1891 opinion in Bengal was outraged by the prosecution for sedition of the editor, owner, printer and publisher of the newspaper Bangobasi . It had trenchantly criticised the Governor-General for the Age of Consent Bill as being offensive to Hindu sentiment. This divided Indian opinion because some welcomed the Bill, opposed though they were to British rule. The jury was divided (7-2). The Chief Justice discharged the jury. “This is not the case on which I should accept anything but an [ sic ] unanimous verdict.” The thousand-strong crowd of “Natives” cheered the result. But the accused apologised to the Government of India for their “intemperate” language and the matter was dropped (J. Ghosal (Editor); Celebrated Trials in India ; M. Banerjee, Bhowanipore; 1902; pages 165-232).

‘Sedition’ and Indian nationalism It was a great moment in the history of India’s struggle for freedom when Maulana Mohammed Ali, Maulana Shaukat Ali and the Shankaracharya of Sharada Peeth were tried jointly in 1921 at Karachi for sedition along with other charges at the height of the Khilafat movement. Convicted, the Ali Brothers were released from prison in 1923.

Maulana Abul Kalam Azad’s trial for sedition in 1922 became famous for his magnificent statement in which he hurled defiance at the rulers. It was “an oration deserving penal servitude for life”, Gandhi wrote in Young India on February 23, 1922.

Gandhi’s own trial for sedition in 1922 at Ahmedabad became a legend for two reasons. His open and full admission of his responsibility for “the diabolical crimes of Chouri Choura or the mad outrages of Bombay”. Next, for the sessions Judge C.R. Broomfield’s generous remarks while pronouncing the sentence. “It will be impossible to ignore the fact that you are in a different category from any person I have ever tried or am likely to have to try. It would be impossible to ignore the fact that in the eyes of millions of your countrymen you are a great patriot and a great leader. Even those who differ from you in politics look upon you as a man of high ideals and of noble and of even saintly life.” (A.G. Noorani; Indian Political Trials 1775-1947 ; Oxford University Press; 2005; page 236).

Broomfield became a highly respected judge of the Bombay High Court. An error has crept in some writings that the judge was “Justice Strangman”. Sir Thomas Strangman, the Advocate General, was appointed Special Prosecutor in the case.

These trials and others for graver offences—such as that of Aurobindo Ghose in the Alipore Bomb Case (1908)—moulded public opinion. Trials create drama. These involved the tallest figures. People hated the law of sedition, which put them in peril. Sir Maurice Gwyer, the first Chief Justice of the Federal Court and a committed liberal, spurned the Strachey amendment and sought to inject the condition that “reasonable anticipation or likelihood of public disorder is the gist of the offence” ( Niharendra Dutt Majumdar vs The King Emperor (1942 Federal Court Reports 38). It was a brave and well-meant effort. The Privy Council, an instrument of colonial control, overruled him ( King Emperor vs Sadashib Narayan Bhalerao (1947) Indian Appeals 89 ). The Viceroy Lord Linlithgow so hated Sir Maurice that he asked London to send a K.C. to brainwash the Chief Justice. He stayed on in India as Vice-Chancellor of the Delhi University.

This was the state of the law on sedition that the British rulers imposed. Indian opinion was reflected in a pamphlet published by the Foreign Department of the All India Congress Committee (AICC). Written by Rammanohar Lohia, it was entitled The Struggle for Civil Liberties and had a foreword by Jawaharlal Nehru. Lohia wrote: “The ordinance law of sedition, Sea Customs Act and the Board of Censors are in themselves sufficient to put a ban on all advanced opinion, thought and art” (page 42).

The framers of India’s Constitution proceeded warily only to arrive at a sound conclusion. The Draft Report of the Constituent Assembly’s Advisory Committee on Minorities, Fundamental Rights, etc., dated April 3, 1947, mentioned sedition among the grounds on which freedom of speech and expression may be restricted (B. Shiva Rao (Ed.) The Framing of India’s Constitution ; the Indian Institute of Public Administration, New Delhi; Volume II; page 139). The Drafting Committee also retained this ground later in 1947. In October 1948 it recommended replacement of the words “or undermines the authority or foundation of the state” in clause (2) by the words “or undermines the security of or tends to overthrow the state” (ibid; “A Study”; page 220). On October 3, 1947, the Drafting Committee retained sedition. So did the Draft Constitution published in February 1948.

K.M. Munshi’s role It is to the credit of K.M. Munshi that he secured the deletion of sedition when the Constituent Assembly debated the Draft on December 1, 1948. Moving his amendment for its deletion, he said: “The word ‘sedition’ has been a word of varying import and has created considerable doubt in the minds of not only the members of this House but of courts of law all over the world. Its definition has been very simple and given so far back as 1868. It says ‘Sedition embraces all those practices whether by word or deed or writing which are calculated to disturb the tranquillity of the state and lead ignorant persons to subvert the government”. But in practice it has had a curious fortune. A hundred and fifty years ago in England, holding a meeting or conducting a procession was considered sedition. Even holding an opinion against, which will bring ill-will towards government, was considered sedition once. Our notorious Section 124 A of Penal Code was sometimes construed so widely that I remember in a case a criticism of a District Magistrate was urged to be covered by Section 124 A. But the public opinion has changed considerably since and now that we have a democratic government a line must be drawn between criticism of government which should be welcome and incitement which would undermine the security or order on which civilised life is based, or which is calculated to overthrow the state. Therefore the word ‘sedition’ has been omitted. As a matter of fact the essence of democracy is criticism of government. The party system, which necessarily involves an advocacy of the replacement of one government by another, is its only bulwark; the advocacy of a different system of government should be welcome because that gives vitality to a democracy.” His amendment was adopted. ( Constituent Assembly Debates ; Volume VIII; page 731). Accordingly, the Revised Draft Constitution of November 1949 omitted sedition by adeliberate, considered decision (B. Shiva Rao; Vol. IV; page 755).

Article 19 (2) of the Constitution as it originally stood read thus: “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to or prevents the state from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the state.”

It was, however, amended by the Constitution (First Amendment) Act, 1951. Clause (2) now read: “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” It was in support of this amendment that Nehru denounced sedition.

The amendment made some changes: (i) Three new grounds of restriction were introduced viz. (1) Friendly relations with foreign states; (2) public order; and (3) incitement to an offence. (ii) The ground “tends to overthrow the state” was deleted. (iii) The words “any matter which offends against or undermines the security of the state” were substituted by the words “in the interests of the security of the state”. (iv) The words “libel, slander” were dropped retaining only the generic term “defamation”. (v) The qualification “reasonable restrictions” were inserted to govern all the grounds.

In Romesh Thapar vs State of Madras (AIR 1950 S.C. 124 at 128) Justice Patanjali Sastri said: “It is also worthy of note that the word ‘sedition’ which occurred in Art. 13 (2) of the Draft Constitution prepared by the Drafting committee was deleted before the article was finally passed as Art. 19 (2). … Deletion of the word ‘sedition’ from the draft Art. 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 ( A.I.R. 1952 Punjab 27 ). It was held that Section 124 A had become void as contravening 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. Weston C.J. 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 124 A (paragraph 1,054, page 403). Headed by Justice G.S. Rajadhyaksha of the Bombay High Court, it had among its members men of high stature such as C.P. Ramaswamy Aiyer, Acharya Narendra Dev and Dr Zakir Hussain.

Omission of ‘sedition’

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”. Sir Maurice Gwyer sought to do that but with good intentions. The Government of India Act, 1935, did not contain a Bill of Rights. He had to enforce the law of sedition against Indians, as Linlithgow desired. He chose another option, which was to “read it down” and inject into Section 124 A, by judicial fiat, the ingredient of incitement to public disorder. This of course was contrary to the intention of the framers of Section 124 A, especially after its amendment in 1898, and was contrary to Justice Strachey’s exposition, which had held sway for half a century. The Privy Council reversed Gwyer.

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

After the Constitution came into force, the High Courts did the correct thing—strike down Section 124 A 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 (AIR 1950 SC 124) Justice Patanjali 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 Section124 A to be void. ( Ram Narain vs State AIR 1959 Allahabad 101 ). It 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 (paragraph 29).

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

The Kedar Nath Singh case There came the judgment of the Constitution Bench of the Supreme Court on January 20, 1962, in Kedar Nath Singh vs State of Bihar(AIR 1962 SC 955; (1963) 1 SCJ 18) . Kedar Nath Singh, a member of the Forward Communist Party, had delivered a speech nearly a decade ago on May 26, 1953, in which he said: “Today the dogs of the C.I.D. are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. … The capitalists and the zamindars of this country help these Congress goondas. These zamindars and capitalists will also have to be brought before the people’s court along with these Congress goondas.

“On the strength of the organisation and unity of kisans and mazdoors the Forward Communist Party will expose the black deeds of the Congress goondas, who are just like the Britishers. Only the colour of the body has changed. They have today established a rule of lathis and bullets in the country.

“The Forward Communist Party does not believe in the doctrine of vote itself. The party had always been believing in revolution and does so even at present. We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a government of the poor and the downtrodden people of India.

“It will be a mistake to expect anything from the Congress rulers. They [Congress rulers] have set up Vinoba Bhave in the midst of the people by causing him to wear a langoti in order to divert the people’s attention from their mistakes. Today Vinoba is playing a drama on the stage of Indian politics. Confusion is being created among the people. I want to tell the last word even to the Congress tyrants. Today the children of the poor are hankering for food and you Congressmen are assuming the attitude of nawabs sitting on the chairs.” He was sentenced to rigorous imprisonment for a year. There was nothing remotely seditious in the speech; not even the advocacy of revolution. There clearly was no immediate incitement to violent revolution.

A unanimous judgment delivered by Chief Justice B.P. Sinha remarked: “This species of offence against the state was not an invention of the British government in India, but has been known in England for centuries. Every state, whatever its form of government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the state, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the state or to public disorder. In England, the crime has thus been described by Stephen in his Commentaries on the Laws of England .”

Old English cases were relied on, as was Gwyer’s ruling. These observations by the Supreme Court are noteworthy. “Any acts within the meaning of S.124A which have the effect of subverting the government by bringing that government into contempt or hatred, or creating disaffection against it , would be within penal statute because the feeling of disloyalty to the government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting government by violent means, which are compendiously included in the term “revolution”, have been made penal by the section in question.”

Thus the mere advocacy of revolution was sedition itself. “Freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have tendency… bringing the law into line with the law of sedition in England, as was the intention of the legislators when they introduced S.124 A into the Indian Penal Code in 1870 as aforesaid, the law will be within the permissible limits laid down in cl. (2) of Art.19 of the Constitution. If, on the other hand, we give a literal meaning to the words of the section, divorced from all the antecedent background in which the law of sedition has grown, as laid down in the several decisions of the Judicial Committee of the Privy Council, it will be true to say that the section is not only within but also very much beyond the limits laid down in cl. (2) aforesaid.”

The record shows this assertion to be untrue. Bar a perfunctory reference to Justice Patanjali Sastri’s observation, there was no discussion of the process by which the framers of the Constitution chose deliberately to omit sedition; no reference to the Press Commission’s recommendation and, worst of all, no reference to the Full Bench ruling of the Allahabad High Court—amidst copious quotes from old obsolete English rulings—and no reference to Nehru’s speech in 1951 denouncing sedition.

An undergraduate whose essay on sedition contained blemishes such as these would earn a deserved reprimand. Kedar Nath’s case passed muster and its baleful impact survived to poison the wells of free speech. Chief Justice Sinha’s apologia betrayed his outlook and that of the other four judges: “The species of offence against the state was not an invention of the British government in India, but has been known in England for centuries.”

Kedar Nath Singh was relied on unquestioningly in the following cases.

1. Balwant Singh & Anr. vs State of Punjab (1995) 3 SCC 214). A liberal bench acquitted the appellant who had raised the slogans “ Khalistan Zindabad ” and “ Raj Karega Khalsa ” because “no disturbance was caused” (page 218).

2. Bilal Ahmad Kaloo vs State of A.P. (1997) 7 SCC 431. Acquitted. Why? Because he had not done “anything against the government” (page 434).

3. Kedar Nath Singh was not relied on in Nazir Khan vs State of Delhi (2003) 8 SCC 461 , but its spirit so possessed Justice Arijit Pasayat that he went so far as to say: “Section 124-A deals with ‘sedition’. Sedition is a crime against society nearly allied to that of treason , and it frequently precedes treason by a short interval . Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed, or writing, which are calculated to disturb the tranquillity of the state, and lead ignorant persons to endeavour to subvert the government and laws of the country. The objects of sedition generally are to induce discontent and insurrection, and stir up opposition to the government, and bring the administration of justice into contempt, and the very tendency of sedition is to incite the people to insurrection and rebellion. “Sedition” has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction , to create public disturbance, or to lead to civil war; to bring into hatred or contempt the sovereign or the government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder.”

U.S. Supreme Court ruling Illiberalism pervades the Supreme Court’s rulings whenever its judges face the insecurity or dissent they dread—be it Terrorist and Disruptive Activities (Prevention) Act (TADA), the Prevention of Terrorism Act (POTA) or the Armed Forces Special Powers Act (AFSPA). The law of sedition is in an unholy mess. Its import depends on the outlook of judges, which is none too liberal. Contrast these rulings with the unanimous ruling of the U.S. Supreme Court in 1969 in Brandenburg vs Ohio (395 U.S. 444; 23 L. Ed. 2nd 40) . It concerned a Ku Klux Klan leader who shouted at a meeting, where others carried firearms, “Bury the niggers”, “The niggers should be returned to Africa” and “Send the Jews back to Israel”. The majority held that “the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminentlawless action and is likely to incite or produce such action. As we said in Noto v United States, 367 US 290, 297-298, 6 L Ed 2d 836, (1961) , ‘the mere abstract teaching of the moral propriety or even more necessity for a resort to force and violence, is not the same as preparing a group for violent action steeling it to such action’. We are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute fails within the condemnation of the First and Fourteenth Amendments.”

Concurring, Justice William Douglas asked: “Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this court. May he be indicted? Suppose one rips his own Bible to shreds to celebrate his departure from one ‘faith’ and his embrace of atheism. May he be indicted?” Will one who burns Manusmriti be indicted? What of Mayawati’s attacks on Manuwadis?

In Hector vs A.G. of Antigua (1990) 2AC 312 , the Privy Council held: “In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. At the same time it is no less obvious that the very purpose of criticism levelled at those who have the conduct of public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office. In the light of these considerations their Lordships cannot help viewing statutory provision which criminalises statements likely to undermine public confidence in the conduct of public affairs with the utmost suspicion. … it would on any view be a grave impediment to the freedom of the press if those who print, or a fortiori those who distribute, matter reflecting critically on the conduct of public authorities could only do so, with impunity if they could first verify the accuracy of all statements of fact on which the criticism was based.”

These observations establish the fundamental fallacy underlying Chief Justice Sinha’s logic—words cannot be read into a penal statute in order to validate it. “Their Lordships are willing to give full weight to the presumption of constitutionality but think that the attempt to contrive a suitable implied term in this context only serves to emphasise the inherent conflict between the provision which it is sought to rescue and the constitutional safeguards of free speech.”

English history and sedition English history is rich in trials for sedition which shaped it and bestirred the 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, Sir Thomas Erskine in defence of Thomas Paine’s The Rights of Man ( Speeches of Thomas Lord Erskine by Edward Walford; Reeves & Turner; 1870; Volumes 1 and 2).

In 1984, Lord Denning expressed the view that “the offence of seditious libel is now obsolete” ( Landmarks in the Law ; page 295). No one has cited Stephen on sedition as approvingly as Chief Justice Sinha did. The authoritative work Media Law by Geoffrey Robertson Q.C. and Andrew Nicol, Q.C. opined that Stephen’s definition of seditious libel “is 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. In terms of Article 10, it is hard to see how it is necessary in a democratic society or proportionate to any legitimate aim.”

Sedition was indeed abolished 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 maintaining freedom.” Britain’s Law Commission had recommended the abolition of the law of sedition in 1977.

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.” It is very likely that she had India in mind.

Robertson and Nicol point out that “many of the criminal laws that affect the media—official secrets and prevention of terrorism, and most of the laws relating to contempt, reporting restrictions and obscenity—cannot be invoked in the criminal courts by anyone except the Attorney-General or the Director of Public Prosecutions (who works under the Attorney’s superintendence). … In all these cases the Attorney-General is not bound to take legal action, even if the law has clearly been broken . He has a discretion —to prosecute or not to prosecute—depending on his view of the public interest. In exercising his discretion he is entitled to take into account any consideration of public policy that bears on the issue— and the public policy in favour of free speech is important in deciding whether to launch official secrets or contempt or obscenity prosecution. Actions that appear to compromise free speech are likely to be criticised in Parliament, where the Attorney must answer for both his and the DPP’s (Director of Public Prosecution) prosecution policy.”

Sir John Simon said on December 1, 1925, in the House of Commons : “There is no greater nonsense talked about the Attorney-General’s duty 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.” That is why both Sir Chimanlal Setalvad and Sir Ibrahim Rahimtullah advised the Governor of Bombay not to prosecute Gandhi for sedition. The result vindicated them. Gandhi emerged stronger after the trial. In the Kedarnath case in 1962, as well as in later cases, the Supreme Court overlooked one fundamental difference between English law and Indian law. In England the Attorney-General’s prior consent is necessary before a prosecution for sedition is launched. He acts in a quasi-judicial capacity, not as a party hack.

In India, it is the Central or even the state government that sanctions the prosecution (Section 196 of the Code of Criminal Procedure). This executive act is performed for political, partisan and even communal reasons. One shocking case will suffice. All the documents are included in Secular Horror by Mustafa Kamal Sherwani; Pharos Media and Publishing Pvt. Ltd.; New Delhi 110 025; Rs.80). The first information report for sedition was filed on March 18, 1985. The accused were acquitted on July 25, 2000—fifteen years later.

Appropriating a judicial prerogative No Minister or executive officer has any right to pronounce on the guilt of a citizen, as Rajnath Singh did. That right belongs to the courts. In a powerful dissent in Gitlow vs New York 268 U.S. 652 at 673 (1925) Justice Oliver Wendell Holmes gave a historic dissent with Justice Louis Brandeis’ concurrence: Benjamin Gitlow, a member of the left wing of the Socialist Party, was convicted under the Criminal Anarchy Act for writing a pamphlet called The Wing Manifesto , which advocated non-parliamentary methods. In 1925, the court affirmed his conviction. Holmes wrote a dissent in which Brandeis joined: “It is said that this manifesto is more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it has no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”

How much stronger then is the case for restraint when students’ activities on a university campus are involved? Involved here are two values—free speech and the autonomy of universities. These are values which neither Rajnath Singh, the Home Minister, nor Smriti Irani, the Human Resource Development Minister, and least of all Amit Shah, the BJP’s president, care for.

“Kings turn men into coins to which they assign what value they like, and which others are obliged to accept at the official rate, and not at their real worth.” La Rochefoucauld’s maxim fits Amit Shah perfectly. He is invited to places which would have turned him away at the doorstep, only because he is very close to Prime Minister Narendra Modi.

Amit Shah is a swadeshi Joseph McCarthy. His latest edict is that even organising an event on Afzal Guru is anti-national. This is too late in the day. More to the point, it betrays his and the BJP’s perverted concept of Indian nationalism and its pluralities.

Very many in the country, this writer included, believe with every reason that Afzal Guru was: (1) framed; (2) was innocent; (3) did not receive a fair trial; and (4) the Supreme Court’s approach and emotive rhetoric did not indicate a judicial approach. Most, if not all, of these applied also to Yakub Memon. (See “Yakub Memon’s execution”, Frontline , September 18, 2015 and “Supreme Court and Yakub Memon”, Frontline , October 2, 2015).

But the nation cares for its values, and it is time an organised campaign is launched against the law of sedition—which is sought to be saved by “reforming” it—against the BJP style McCarthyism (“anti-national”) and for the autonomy of universities. (See Donald Alexander Downs; Restoring Free Speech and Liberty on Campus ; Cambridge University Press, 2005.)

Section 43(1) of the British Education Act, 1986, lays down: “Every individual and body or persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.” Thus, the British statute provides the right to invite speakers from outside as part of the students’ rights to form their unions; publish their magazines like the Harvard Crimson ; and express political opinions.

Such a statute will not be enacted in India, but Indians can and should unite against repressive laws and for the autonomy of universities.

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