The plague of sedition

The epidemic, rather the plague, of cases of sedition, which has swept all over the country has spared none: women, children, students in schools, headmistresses, you name them. Only the unborn have been spared. What is overlooked is that it is the Supreme Court’s gift to the nation. The Constituent Assembly dropped the very word sedition, which had found a place in the draft Constitution.

After the Constitution came into force, Prime Minister Jawaharlal Nehru strongly denounced this archaic offence in Parliament. It was on its way out in Britain when our Supreme Court restored it, citing obsolete English cases and ignoring an earlier ruling of the court itself, which was contrary to the court’s approach. The Supreme Court is directly responsible for the epidemic, constitutionally and morally.

The matter came up before the Constituent Assembly on December 1, 1948. K. M. Munshi, a brilliant and erudite lawyer, moved an amendment for deleting the word “sedition” from the draft Constitution. He said: “Sir, the importance of this amendment is that it seeks to delete the word ‘sedition’. The object is to remove the word ‘sedition’ which is of doubtful and varying import and to introduce words which are now considered to be the gist of an offence against the state.…

“The word ‘sedition’ has been a word of varying meanings, 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 tranquility 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 which will bring ill-will towards government was considered sedition once. Our notorious Section 124-A of the Penal Code was sometimes construed so widely that I remember in a case of 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.…

“This amendment therefore seeks to use words which properly answer to the implication of the word ‘Sedition’ as understood by the present generation in a democracy and therefore there is no substantial change; the equivocal word ‘sedition’ only sought to be deleted from the article. Otherwise an erroneous impression would be created that we want to perpetuate 124-A of the I.P.C. or its meaning which was considered good law in earlier days” ( Constituent Assembly Debates , Volume 7, pages 731-2). The amendment was adopted unopposed.

On May 29, 1951, Nehru told Parliament: “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 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” ( Selected Works of Jawaharlal Nehru , Volume 16, Part I, page 200).

Landmark judgment

On May 16, 1950, less than four months after the Constitution came into force on January 26 that year, the Supreme Court delivered one of its finest judgments in Romesh Thapar vs The State of Madras (AIR 1950 S.C. 124). Romesh Thapar was editor, printer and publisher of the weekly Crossroads , printed and published in Bombay. The State of Madras banned its entry and circulation in the State. The ban was quashed in a landmark judgment which is still relevant.

It noted the deletion of the word “sedition” and said: “The Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in Article 19(1), has placed in a distinct category those offences against public order which aim at undermining the security of the state or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the state or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly [sub-clause (b)] and the right of association [sub-clause (c)] may be restricted under clauses (3) and (4) of article 19 in the interests of “public order”, which in those clauses includes the security of the State.”

Kedar Nath Case

But, on January 20, 1962, came Kedar Nath Singh vs State of Bihar , which continues to be cited as an authority that validates the offence of sedition as defined in Section 124-A of the Penal Code (AIR 1962; S.C. 955). Kedar Nath Singh’s speech did not err on the side of restraint. He said: “(a) Today the dogs of the C.I.D. [Criminal Investigation Department] are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from the country and elected these Congress goondas to the gaddi and seated them on it. Today these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas. These Congress goondas are banking upon the American dollars and imposing various kinds of taxes on the people today. The blood of our brothers— mazdoor s and kisan s—is being sucked. 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.

“(b) 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 Britishers had to go away from this land. They had aeroplanes, guns, bombs and other weapons with them.

“(c) 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.

“(d) It will be a mistake to expect anything from the Congress rulers. They (Congress rulers) have set up [Vinobha] 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 Vinova is playing a drama on the stage of Indian politics. Confusion is being created among the people. I want to tell Vinova and advise his agents, ‘you should understand it that the people cannot be deceived by this yajna, illusion and fraud of Vinova’. I shall advise Vinova not to become a puppet in the hands of the Congressmen. Those persons, who understand the yajna of Vinova, realise that Vinova is an agent of the Congress government.

(e) I tell you that this Congress government will do no good to you… (f) I want to tell the last word even to the Congress tyrants, ‘You play with the people and ruin them by entangling them in the mesh of bribery, black-marketing and corruption. Today the children of the poor are hankering for food and you Congressmen are assuming the attitude of Nawabs sitting on the chairs’…”

The Supreme Court said: “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.”

It added: “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. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence would not be penal. In other words, disloyalty to government established by law is not the same thing as commenting in strong terms upon the measures or acts of government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.”

It is an elaborate defence relying on old British law. A mere “ tendency to create disorder” constitutes sedition, contra the court’s ruling in Romesh Thapar’s case. Read this: “It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.”

In a classic work, Freedom of Speech , Eric Barendt, Professor of Media Law at University of London, noted (page 162): “A prominent American commentator on the First Amendment, Harry Kalven, observed that the existence of the offence of seditious libel—a hostile attack on government—is the hallmark of an unfree society.” (He was referring to Professor H. Kalven’s 1964 article in Supreme Court Review , page 1919.) He held: “The elements of common law crime in English law are far from clear. The obscurity made use of the charge dangerous when it was frequently brought, but now probably encourages its obsolescence.… The classic definition of sedition reflects a traditional, conservative view of the correct relationship between state and society. Governments and public institutions are not to be regarded as responsible to the people, but in some mystical way, as under the doctrine of the Divine Right of Kings, are entitled to the respect of their subjects.” Unlike our Supreme Court, he found sedition to be obnoxious.

Inherently vague

It is a fundamental principle of criminal law that no man shall be put in peril on an ambiguity. Most authorities have pointed out that the definition of the offence of sedition is inherently vague .

A theoretical plea for revolution is permissible. There must be an incitement for immediate use of violence for such a plea to constitute an offence. In 1970 a unanimous judgment of the United States Supreme Court noted: “decisions have fashioned the principle 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 imminent lawless action and is likely to incite or produce such action” ( Brandenburg vs. Ohio ; 395 U.S. 444 at 467).

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 Sinha did. The authoritative work, Media Law: The Rights of Journalists and Broadcasters by Geoffrey Robertson, QC, and Andrew Nicol, QC, 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.”

Obsolete offences

Sedition was 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 maintaining 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 .” Perhaps 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 DPI’s (Director of Public Prosecution) prosecution policy.”

Sir John Simon had 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.” In the Kedar Nath case in 1962, as well as in later cases, the Supreme Court overlooked this fundamental difference between English law and Indian law.

Freedom to give offence

The truth is that while adopting British or American laws and institutions, we denude them of their spirit and reject their culture. In 1989, the U.S. Supreme Court in a 5:4 decision upheld the right of one Gregory (“Joey”) Johnson to douse the American flag with kerosene and set it afire. The Texan, a member of the Revolutionary Communist Youth Brigade, had torched the flag outside the 1984 Republican Convention in Dallas while chanting—in concord with a group of fellow protesters—“America, the red, white, and blue, we spit on you. You stand for plunder, you will go under.” After Johnson was arrested, and subsequently convicted under a Texas flag desecration law, his appeal ultimately reached the Supreme Court of the United States. In a dramatic ruling that surprised a good many observers, it upheld Johnson’s act as a valid symbolic gesture of freedom of expression, guaranteed by the terms of the First Amendment. With two of the court’s most conservative members, Justices Scalia and Kennedy, moving over to the liberal trio of Justices Brennan, Marshall, and Blackmun, the court thus declared unconstitutional flag desecration laws in 48 States and the federal government and set off a firestorm of protest. “If there is a bedrock principle underlying the First Amendment,” wrote Justice Brennan in delivering the majority opinion, “it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

On July 23, 1999, the Queen’s Barch Divisional Court ruled in Redmond-Bate vs Director of Prosecutions that free speech included not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it did not tend to provoke violence. Freedom only to speak inoffensively was not worth having. What the Speakers’ Corner in the Hyde Park, where the law applied as fully as anywhere else, demonstrated was the tolerance which was both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagreed, even strongly, with what they heard.

“From the condemnation of Socrates to the persecution of modern writers and journalists, our world had seen too many examples of state control of unofficial ideas.”

It is a thousand pities that the Supreme Court of an independent India should uphold a law that was inspired by racist and colonial sentiment. 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 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.”

Section 124A of the Indian Penal Code was, 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.”

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 124A but with a proviso: those comments must not arouse any of the dreaded emotions it listed.

He said: “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 usuited, 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 speech 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.”

An English barrister at the Calcutta High Court wrote a whole book in defence of sedition for racist reasons: The Law of Sedition and Cognate Offences in British India by W.R. Donogh; Thacker, Spink & Co.; 1911.

Oliver Wendell Holmes’ words (see box) in Gitlow vs New York (268 U.S. 652 at 673) in 1925 are a classic on the subject.