By Ershad Ahmad for Twocircles.net
In the stir of JNU students being charged with sedition, many legal and political experts believe that the archaic law needs to be done away with. Even as the prominent politicians and the civil society groups demanded proof from the Centre for imposing sedition charges against university students, including JNUSU President Kanhaiya Kumar, the Home Minister Rajnath Singh said, “If anyone raises anti-India slogans, tries to raise questions on the country’s unity and integrity, they will not be spared. Stringent action will be taken against them.” While some call it a ‘political gimmick’ before the budget sessions, others question the validity of charging students with a law that can destroy their lives. Below is an explanation of the sedition law, recent and past cases and what legal experts have to say. Besides, there is growing perception among the wider society that the Government has ill-handled the JNU matter to deflect the public attention from the core issues of “delivery” confronting them, even as the non-BJP parties dubbed it as an “emergency-like” situation.
Indian constitution’s chapter VI deals with offences against the state and sedition is charged under Section 124A of the IPC. Section 124A of the IPC simply announces that spreading sedition and disaffection is a crime. The punishment includes imprisonment for life and added fines. Imprisonment can be for life-time or for three years based on the nature of seditious charges. Sedition as defined in the IPC is, “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.”
But, Article 19(1)(a) of the Indian Constitution says, all citizens have the right to freedom of speech and expression. Article 19 (2) of Indian Constitution says that, every citizen of the country holds the right to air his or her opinion through print or electronic media with restrictions imposed.
History of sedition
Section 124(A) was introduced by the British colonial government in 1870 when it felt the need for a specific section to deal with the offence. Many Indians in the past have been charged under this act. Prominent freedom fighters charged with sedition law include Bal Gangadhar Tilak and Mahatma Gandhi.Lokmanya Tilak faced the “Sedition charge” during the repressive British regime. As the editor of ‘Kesari’, Tilak on May 12, 1908, titled his editorial ‘The misfortune of the country’, castigating the ruthless bureaucracy. The British police, slapped sedition charges against Tilak under Section 124-A of the Indian Penal Code. He was arrested on May 25, 1908, convicted by jury trial on July 17, 1908, and sentenced to six years’ imprisonment in the case – popularly known as ‘Second Sedition Case’. At the time, Gandhi was being tried for writing three articles in his newspaper, Young India, in which he sharply criticized the government’s repressive measures to suppress the people’s struggle. In mounting his defense in the 1922 trial, Gandhi struck at the very foundation of this law. Gandhi pleaded guilty to the charge of sedition and spreading disaffection.
The Incident
The controversy at JNU erupted earlier this week when some students had pasted posters across the campus inviting people to a protest march against “judicial killing of Afzal Guru and Maqbool Bhatt” and in solidarity with “struggle of Kashmiri people for their democratic right to self determination” at varsity’s Sabarmati dhaba. Members of the ABVP objected to the event and wrote to the Vice Chancellor that such kind protest should not be held on campus of an educational institution, prompting the university administration to order cancellation of the march as they “feared” it might “disrupt” peace.
The Delhi Police on Friday, Feb 13, arrested the Jawaharlal Nehru University student’s union president Kanhaiya Kumar on charges of sedition and criminal conspiracy, hours after the Home Minister Rajnath Singh and HRD Minister Smriti Irani denounced the raising of alleged anti-India slogans in JNU. Kumar’s arrest evoked strong reactions from JNU students and teachers, past and present, and Opposition parties even as the RSS’s students wing ABVP “thanked” police for arresting the “anti-nationals”. The arrest of Kumar, a member of the CPI’s students wing AISF, was made a day after BJP MP from East Delhi, Maheish Girri, registered a complaint with police. Kumar was remanded in police custody for three days after he was detained from the JNU campus for questioning by two policemen in plainclothes. Police had sought custody for five days to determine his alleged links with terrorist groups in Pakistan and Kashmir while claiming that he had visited Kashmir in 2012. “I dissociate myself from slogans that were shouted during the event. I have full faith in the Constitution of the country and I always say that Kashmir is an integral part of India,” Kanhaiya told the court. Condemning the incident, the University Vice Chancellor said, “While the JNU community upholds the right to free debate on campus, the University strongly condemns the use of the University as a platform for activities that violate the Constitution and the laws of the land. A high-level enquiry committee has been constituted to investigate the matter and take appropriate action.”
The police have recorded the entire incident and now are in the process of scanning the footage to find out what kind of slogans were raised and identify those who raised them. The ABVP, meanwhile, has given a seven-day ultimatum to the administration to complete the inquiry and take necessary action.
Later, the escalating stand-off over the arrest of Kanhaiya Kumar saw the students going on strike demanding his immediate release. Scuffle broke out in Patiala House court when JNUSU President Kanhaiya Kumar was being produced. The court, later, extended Kanhaiya’s police custody for 2 more days.
Landmark cases and glaring examples:
Arundhati Roy’s case
Writer and human rights activist Arundhati Roy’s anti-India India rant was under the scanner when she made two speeches in New Delhi and Srinagar in the in which she sought independence for Kashmir from India. Roy was charged under sections 124A (sedition), 153A (promoting enmity between classes), 153B (imputations, assertions prejudicial to national integration), 504 (insult intended to provoke breach of peace) and 505 (false statement, rumour circulated with intent to cause mutiny or offence against public peace.
Aseem Trivedi’s case
Cartoonist Aseem Trivedi, an anti corruption crusader of India Against Corruption launched a website www.cartoonsagainstcorruption.com consisting of his sharp anti corruption cartoons targeting corrupt system and the politicos. He displayed his cartoons in the MMRDA ground, Mumbai during the hunger strike of Anna Hazare. He was arrested on September 8 based on a complaint of a Mumbai lawyer who took umbrage at his anti-corruption cartoons and alleged that the cartoons were offensive and disrespectful of national emblems and the constitution. Trivedi was released on bail.
But, his website was suspended by Crime Branch, Mumbai on the first day of the protest, when he received an email from BigRock, the domain name registrar with which his website was registered, saying, “We have received a complaint from Crime Branch, Mumbai against domain name ‘cartoonsagainstcorruption.com’ for displaying objectionable pictures and texts related to flag and emblem of India. Hence we have suspended the domain name and its associated services.”
While leaving the jail in Mumbai, Mr Trivedi had said, “My battle has just begun.” Thanking the people for their “overwhelming support,” he slammed the sedition law saying, “124A has been in place since the colonial time when the British used to silence rebel voices. This is the only law which is misused more than it is used, it is archaic and befitting a monarchy not a democracy”.
Sedition case filed against the Times of India- Ahmadabad Edition
The features carried by Times of India (Ahmadabad Edition ) exposing the close nexus between police officer OP Mathur and Abdul Latif, in Gujarat raised serious questions about the credibility of the police officer on a high rank and the level of criminalization of police in the state. The story of the news was- ’How safe is Ahmadabad under OP Mathur?’Registering the “sedition” case against Times of India was a deliberate action of Gujarat police to suppress the voice of dissent of the press and create an atmosphere of panic in the state. However, the citizens of Ahmadabad came out and condemned the sedition charge and stood for freedom of press and freedom of expression.
Sedition case filed against Aamir Khan
In Nov, 2015, Bollowood actor Aamir Khan said that his wife was frightened following a number of cases pertaining to religious intolerance and even suggested leaving India. His statements have courted a lot of censure in the country with the ruling party BJP and many Bollywood actors criticising his remarks. The case was been filed against Amir Khan under the Indian Penal Code (IPC) section 124 A (sedition), 153 A (promoting enmity between different groups on religious grounds) 153 B (Imputations) and 505 (statements conducing to public mischief). Advocate Manoj Kumar Dixit, who filed the case against Khan, said his ‘anti-national’ statement amounts to sedition.
Sedition charges against Kashmiri students of “Swami Vivekanand Subharti University “in Meerut Uttar Pradesh government had earlier filed a sedition case against the Kashmiri students of “Swami Vivekanand Subharti University “ under Section 124a, 153a and 427 of the Indian Penal Code which was later withdrawn. The trouble was said to have began, when a group of local and Kashmiri students were watching the India-Pakistan cricket match in the hall of the hostel. A few Kashmiri students cheered every time an Indian player’s wicket fell, later celebrating Pakistan’s win. The charges were filed against the complaint that a few students reportedly shouted “pakistan zindabad” while going to their rooms after watching the match.”
The Kedar Nath Singh Case
In the 1950s and early 1960s, the Court addressed the law of sedition, the Court was required to squarely deal with the relationship between sedition and the freedom of speech and expression. The constitutional challenge arose out of a number of cases that were being heard together; all cases involved speeches that – in specific terms – called for an armed revolution to overthrow the government. A few lines of his speech are worth quoting “To-day the dogs of CID are loitering around 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. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well… They have today established a rule of lathis and bullets in the country. We believe in revolution, which will come and in the flames of which, the capitalists, zamindars and the Congress leaders of India will be reduced to ashes and on their ashes will be established a Government of the poor and downtrodden people of India.” After stating the extant provision in full, the Court in Kedar Nath Singh had its first stab at a philosophical justification of sedition laws: “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.”
Hence, it may be concluded that the ‘Sedition’ defined under Section 124A of the IPC is a colonial law meant to suppress the voice of Indian people. That is why the Indian Law on sedition was different from the English law. Despite the strict construction adopted by the Supreme Court, the law enforcement agencies have always used it against artists, public men, intellectuals, et al for criticising the governments. In fact the Supreme Court itself did not apply these strict principles to the speech of Kedarnath and his conviction. The government and its agencies have, in reality, followed the law enunciated by the Privy Council and not by the Supreme Court in Kedarnath. The governments in free India continue to use it for the very purpose for which the colonial government used it.Therefore, since the governments and its agencies have strictly gone by the text of Section 124A though the Supreme Court itself did not apply these principles to the speech of Kedarnath, the law declared in Kedarnath has lost its potency. The Supreme Court, being the protector of the fundamental rights of the citizens may step in now and declare Section 124A unconstitutional. India of the 21st century does not require a law used by the colonial government to suppress India’s voice.
Therefore, advocating revolution, or advocating even violent overthrow of the State, does not amount to sedition, unless there is incitement to violence, and more importantly, the incitement is to ‘imminent’ violence. For instance, in Balwant Singh v. State of Punjab, the Supreme Court overturned the convictions for ‘sedition’, (124A, IPC) and ‘promoting enmity between different groups on grounds of religion, race etc.’, (153A, IPC), and acquitted persons who had shouted – “Khalistan zindabaad, Raj Karega Khalsa,” and, “Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da”, late evening on 31 October 1984, i.e. a few hours after Indira Gandhi’s assassination – outside a cinema in a market frequented by Hindus and Sikhs in Chandigarh.
Thus, words and speech can be criminalised and punished only in situations where it is being used to incite mobs or crowds to violent action. Mere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence unless this condition is met. Notwithstanding the relatively high standards laid down by the Supreme Court of India, what actually constitutes sedition, the police and the lower judiciary unfortunately has continued to ignore the guidance.
Many students from across the nations and the political opponents have accused the government of misusing British-era anti-sedition laws to quell dissent. The state machineries can’t just restrain thoughts that don’t agree with them.
The series of events like JNU in India, both pre-independence and the post independence serve as a microcosm for much of the debate that’s occurring in the pretext of freedom of speech. Indian constitution ensures to all citizens inter alia, liberty of thought, expression, belief, faith and worship. The constitutional significance of the freedom of speech consists in the Preamble of Constitution and is transformed as fundamental and human right in Article 19(1) (a) as “freedom of speech and expression”.Therefore, it is a collective responsibility of the nation to uphold the constitutional mandate for a just India inclusive for all.
The author is a Development Communications Expert and an alumnus of AJKMCRC, Jamia Millia Islamia.