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Sedition in India: Colonial Legacy, Misuse and Effect on Free Speech

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Sedition in India: Colonial Legacy, Misuse and Effect on Free Speech ISSN (Online) - 2349-8846 Sedition in India: Colonial Legacy, Misuse and Effect on Free Speech EPW ENGAGE Since its inception, Section 124A of the Indian Penal Code, which punishes sedition, has been a tool in the hands of the state to curb criticism and dissent. It has been used by the colonial British government as well as by successive governments of independent India against political dissidents. Six senior journalists—Rajdeep Sardesai, Mrinal Pande, Anant Nath, Paresh Nath, Zafar Agha, and Vinod Jose—and Shashi Tharoor, member of Parliament from the Congress, had been booked for “posting tweets and deliberately circulating fake news” about the death of a farmer during the farmers protests in Delhi on 26 January 2021. In the first information reports (FIRs) against them, the charges included promoting enmity, engaging in acts that are prejudicial to the maintenance of harmony between religions, making statements promoting hatred or ill-will, and sedition. While arrest in these FIRs has been stayed by the Supreme Court, the filing of cases against journalists and political dissenters has become increasingly commonplace in recent years. A new database by Article 14 reveals a 28% increase in the number of sedition cases filed each year between 2014 and 2020, as compared to the yearly average between 2010 and 2014. In this reading list, we take a look at the sedition law and discuss why such an offence, with its colonial roots, has remained in the law books. ISSN (Online) - 2349-8846 What Is Sedition? According to Section 124A of the Indian Penal Code, Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, 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, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. This means that the law punishes attempts to create “hatred,” “contempt,” or “disaffection” towards the government as “sedition.” The explanation to Section 124A explicitly excludes “disapprobation” of the measures or actions of the government that does not excite or attempt to excite hatred, contempt or disaffection. Siddharth Narrain (2011) wrote: The law in its wording distinguished between bringing into hatred or contempt, or exciting or attempting to excite disaffection towards the government established by law and what is termed in the explanation as expressing disapprobation against the state (which is permissible). “Disaffection” has been defined as a feeling that can exist only between “the ruler” and “the ruled”. The ruler must be accepted as a ruler, and disaffection, which is the opposite of that feeling, is the repudiation of that spirit of acceptance of a particular government as ruler. The Supreme Court has also weighed on the meaning of sedition and given it a narrow interpretation. Moushumi Basu and Deepika Tandon (2016) highlighted: … the Supreme Court in the Kedar Nath Singh v State of Bihar Verdict (1962) established that the charge of sedition can only be sustained in the instance of incitement to violence in a speech, not for advocacy. Justice A P Shah (2017), while delivering the M N Roy Memorial Lecture, explained the Kedar Nath judgment further: The Court upheld the constitutionality of sedition, but limited its application to “acts involving intention or tendency to create disorder, or disturbance of law ISSN (Online) - 2349-8846 and order, or incitement to violence.” It distinguished these acts from “very strong speech” or the use of “vigorous words” which were strongly critical of the government. Similarly, Narrain added: The judges observed that if the sedition law was to be given a wider interpretation, it would not survive the test of constitutionality. Citing another landmark case, Basu and Tandon wrote: In another progressive judgment, the Supreme Court in 1995 in the Balwant Singh v State of Punjab case set aside the charge of sedition in relation to anti- India slogans raised—“Khalistan Zindabad…Hindustan Murdabad.” The verdict opined that mere casual slogans having no effect on public order in terms of provocation to violence do not constitute sedition. Justice Shah also explained: Instead of simply looking at the “tendency” of the words to cause public disorder, the Court held that “raising of some lonesome slogans, a couple of times... which neither evoked any response nor reaction from anyone in the public” did not amount to sedition, for which a more overt act was required. The Court took cognizance of the fact that the accused had not intended to “incite people to create disorder” and that no “law and order problem” actually occurred. Reflecting on the sedition charges against students of Jawaharlal Nehru University, the Central University of Gujarat Teachers' Association (2016) summed up: The Supreme Court has unambiguously stated in previous cases that words and speech can be criminalised and punished as “sedition” only in situations where they are being used to incite mobs or crowds to violent action. Has the Law of Sedition Been Misused? The use of sedition law to curb all kinds of criticism against the government, and not against incitement to violence against the state alone, has been well-documented over the years. ISSN (Online) - 2349-8846 An EPW editorial (2016) wrote: Whether it is the first information reports (FIRs) against protestors at Koodankulam or the recent complaints against Kanhaiya Kumar or Amnesty International, Section 124A has been used by governments of all shades to stifle dissent. The relatively small number of cases should not hide the intention of the government—to have a chilling effect on dissenting speech. Justice Shah (2017) similarly remarked: Today, sadly, in this country I love, if anyone holds a view that is different from the government’s “acceptable” view, they are immediately dubbed as “anti- national” or “desh-drohi”. This marker of “anti-national” is used to intimidate and browbeat voices of dissent and criticism, and more worryingly, can be used to slap criminal charges of sedition against them. Despite the attempts made by the higher judiciary to restrict the understanding of sedition to an act of incitement to violence, the use of the law in the hands of the state executive narrates a story of the misuse of law. Commenting on the sedition charges against S A R Geelani of University of Delhi, Basu and Tandon (2016) specifically emphasised how the law has been used to target minority voices: It needs to be recalled that the use of sedition against Muslims in general and Kashmiris in particular is not sporadic. In March 2014, the police had registered a case of sedition against 67 Kashmiri students of Meerut’s Swami Vivekanand Subharti University (SVSU) under pressure from the Bharatiya Janata Party (BJP) workers for cheering Pakistan’s victory in a cricket match. In November 2014, 10 schoolgoing boys in the Kushinagar District of Uttar Pradesh were charged for sedition, when they wore T-shirts of the Pakistani cricket team during a Muharram procession. In the past, there have been popular demands to prosecute figures like Arundhati Roy and Prashant Bhushan under the section on sedition for voicing their opinion in support of a plebiscite in Kashmir. In her review of Anushka Singh’s Sedition in Liberal Democracies, Ankita Pandey (2019) highlighted a similar trend in the practice and deployment on the ground of sedition: Predictably, Singh finds that in its everyday application, sedition is deeply embedded in local politics and in variables such as caste, class, and ISSN (Online) - 2349-8846 community. For instance, her fieldwork reveals that in Haryana various marginalised groups experience sedition as a tool for upper-caste domination. Another facet of the government instituting sedition charges is that irrespective of whether further prosecution is tenable, the process of the law itself acts as a deterrent against dissent. The EPW editorial (2016) pointed out: Save for rare cases, an FIR almost inevitably follows the complaint, the criminal justice system proceeds to grind down the accused, who no matter how obviously innocent, is forced to defend herself and run from court to police station to clear her name. Even when a court ultimately finds that the complaint and the FIR were entirely frivolous, there is no remedy or compensation offered to the exonerated for the blatantly illegal acts unless she wants to once again run from court to court seeking compensation. The nature of its use by the government indicates that the government has used it to muzzle dissenters even when its action would not stand judicial scrutiny at a later stage. Justice Shah noted: Unfortunately, the broad scope of Section 124-A allows it to be used by the State to go after those who challenge its power, whether it is the JNU students, activists such as Hardik Patel and Binayak Sen, authors such as Arundhati Roy, cartoonists such as Aseem Trivedi, or the villagers of Idinthakarai in Tamil Nadu protesting against the Kudankulam Nuclear Power Plant. These examples are demonstrative of the misuse of the provision. The law is clear that mere sloganeering is not enough, and has to be accompanied by a call for violence. However, at the stage of registering the FIR and initiating criminal proceedings, the question of the interpretation of the section in line with the Supreme Court’s jurisprudence, does not arise. Thus, sedition charges are easily slapped, but seldom stick, but cause immense harassment in the process. Even if one is eventually acquitted of sedition, the process of having to undergo the trial itself is the punishment – and more importantly, the deterrent against any voice of dissent or criticism.
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