By Azim Hussain Mazumder,
The arrest of Kanhaiya Kumar on sedition charges following the so called ‘Anti-national’ incident at Jawaharlal Nehru University sparked the debate of Sedition Law in India. Based upon a complaint of right-wing student outfit ABVP, Delhi Police arrested JNUSU President Kanhaiya Kumar for allegedly organizing a gathering to protest the hanging of Afzal Guru, the prime convict in 2001 Parliament attack, he was accused of shouting anti-India, ant-national slogan at the gathering.
Denying the charges Kanhaiya said that neither did he shouted any slogan nor had he said anything against the integrity of India. The arrest of Kanhaiya, putting Umar Khalid, Anirban Bhattacharya and others who surrendered following the complaint in custody once again portrayed us the attack on the freedom of speech and expression by state machinery. The protest rally at JNU, arrest of Kanhaiya, self-surrendering by the others accused soon snowballed into a major political controversy. Media focus giving the incident prime coverage , debate around seditious acts, arguments, flooding social media sites in arguments and counter arguments, ‘deshdrohi’ ‘deshbhakt’ division, a complete chaotic environment throughout the country, government’s reaction, responses from international intellectual society etc. etc. are enough to tell us that there is a pressing need of debate regarding the rationale behind sedition provision in our criminal law system which is of colonial nature and dates far back to pre-independence era.
In the recent years, the arrest of Aseem Trivedi, Binayak Sen and similar others on some sedition charges faced severe criticism saying that government uses sedition law to crackdown the voice of dissent. More recently, the pro-reservation leader of Gujrat Hardik Patel was also booked under sedition law for sending messages containing offensive languages against Prime Minister Narendra Modi, Gujrat Chief Minister and BJP President Amit Shah. Besides these, many artists, public figures, intellectuals who criticize government policies have faced sedition charges at different times.
Unnecessary harassment and booking people charging under different sedition laws by state agencies are indicative enough of how the government tries to keep the voice of dissent lower, negates the freedom of speech and expression, uses police as an onslaught to crackdown opposition. Last year when the Supreme Court in deciding Indra Sehgal vs. Union of India declared the ‘notorious’ Section 66A of IT Act as unconstitutional, a large section of Indian citizens wished to see an end of the sedition law in India. A hope was kindled in the minds of human rights activists, intellectuals, academicians to bid adieu to the continuance of a law which was originally and primarily used to crush India’s freedom struggle. In a free, sovereign, independent country continuance of sedition seems undemocratic and unconstitutional. The irony of Indian sedition law can be seen in the fact is that the same laws were used against nationalist leaders like Bal Gangadhar Tilak, Mahatma Gandhi, Annie Bessant and many others.
What does Sedition mean?
Tracing back to the origin it is seen that the provision of sedition has always been in some controversy. Although sedition provision was there in original IPC as drafted by Thomas Macaulay but it was dropped in the final enactment of IPC in 1860. However in 1870, the offence got reintroduced under Section 124A of IPC stating that earlier it was dropped by mistake. Section 124A after amendments at different times presently stands as: “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 attempt 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.”
Explanation 1. – The expression disaffection includes disloyalty and all feelings of enmity.
Explanation 2. – Comment expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt of disaffection, do not constitute an offence under this section.
Explanation 3. – Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
The definition as well as explanations in a plain reading look ambiguous, vague in nature. Judiciary has explained, clarified the provision taking different notions into consideration. In 1922, when Gandhi was prosecuted under it, he gave a long statement condemning this law. The most important part of his statement was, ‘Section 124A under which I am happily charged is perhaps the prince among the political sections of the IPC designated to suppress the liberty of citizens.’
In 1942, the Federal Court in Niharnedu Dutta Majumder vs. King Emperor (1942 FCR 48) stated that public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offence. The Court said sedition implies resistance or lawlessness in some form. However in King Emperor vs. Sadasiv Narayan Bhalerao (1947) overruled the Niharendu Dutta Majumder case holding that excitement of feeling of the enmity to the government is necessary to make one guilty under Section 124A of Indian Penal Code.
Independent India, Sedition Law and Kedarnath Singh Case
India became independent in 1947. Subsequently laws which were not in contradiction with the newly adopted Constitution were kept valid. However sedition law despite of bearing contradictory nature with that of the Constitution remained alive. Arguments in favor of it exclaimed that in an emerging democracy sedition law was necessarily required to strengthen the unity and integrity of the country. Tackling the threat on sovereignty, fulfilling constitutional commitments it was argued that such laws are necessary. And thus, not only Section 124A IPC, some more laws like Section 95 Cr.P.C, Seditious Meeting Act 1911, Section 2 (O) (iii) of Unlawful Activities (Prevention) Act 1967. All these laws deal with seditious acts and people get prosecuted under these laws for offences of so-called seditious activities.
1962 is regarded as an important year in the history of sedition law in independent India. In a public gathering one Kedarnath Singh from Bihar delivered a speech. Some parts of the controversial speech are, “Today, the dog of CBI are loitering around 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. When we drove out the Britishers, we shal strike and turn out these congress goondas as well. They have today established a rule of lathis, bullets in the country… we believe in (a)revolution which will come and in the flame of which, the capitalists, zamindars and congress leaders of India will be reduced to ashes and on their ashes will be established a Government of the poor and the downtrodden people of India.” This speech leaded Kedarnath to jail.
When the case came before the Supreme Court, it too held that Kedarnath’s speech bears a basis of Sedition charge. The Supreme Court’s decision in this case attracted severe criticism as it gave the decision referring the points raised by the Privy Council in Sadasiv Narayan Case of 1947. Many scholars, academicians shared their views of being dissatisfied with the decision. Even many politicians remarked that there was no incitement to violence neither did the speech amount any disorder or disharmony. The judgment itself seemed to be in contradiction to the rights guaranteed by the Constitution under Article 19 (1) (a). The Supreme Court in absence of a liberal interpretation adopted the strict principle of English law in Niharendu Dutta Majumder case where accused got convicted under Section 124A.
Render Sedition law – Demand of Democracy
India being the largest democracy bears a huge commitments in the Constitution to effectively lead the country into a more democratic, more liberal, more efficient and transparent governance. Founding fathers dreamt of a welfare India where governance would be according to the letter and spirit of Constitution. However in the failure of Constitutional mandates it is evident when the State gets criticized, state mechanism is faced with protest for not meeting Constitutional guidelines and met with dissent for not abiding by the constitutional framework despite of having provisions for handling opposition democratically the state often choses to crush the voice with iron hand, suppressed opposition using bad laws, crack down upon movements using Police force.
In last few years number of media persons have been got prosecuted for publishing articles, news items against government actions or policies. Such use of Sedition law in petty issues not only makes a joke of Indian democracy, but also reflects the killing of democratic ideas by state. Public figures who guard public interests by bringing misdeed, failings and lapses of government to the forefront are harassed in many ways. Sedition laws become the most easily availed tool to threaten them to move away from speaking in the interest of public. Sometimes, the shocking and surprising position of Government makes us wonder which era we are living in. What was the need for driving away colonial rule? How does a sovereign, independent democracy act like a colonial government? Every times we see the state mechanism sees the ghost of sedition in fair criticism of government policies, governments. It is seen sedition even get used for criticizing people inclined to ruling party.
A status update on facebook questioning the need of Mumbai-Band in Bal Thackery’s funeral program, liking and sharing of the same post took people behind bar. Tamil Nadu Government prosecutes a singer for mimicking state chief minister. Kanhaiya Kumar gets arrested based on some unverified, doctored video clips and other comparable cases of past days suggest that enough is enough for sedition law. These incidents point to make us realize that widespread (mis)use of sedition law. Does a democracy of seventy years old really require a sedition law? A colonial law suppressing the voice of dissent, a colonial law which once strictly interpreted to crush down freedom movement, a colonial law that served as a tool against opposition does not deserve to be there in an independent criminal justice system. The recent arrest of Kanhaiya and his comrades, the ongoing debate on it, people’s dissatisfaction with this law, widespread misuse of sedition law, in fact the very nature of the law itself says that it is high time to scrap the sedition law.
–
(Originally from Hailakandi, Assam, Azim Hussain Mazumder is a LL.M Student at Jamia Millia Islamia.)