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‘Sedition’ is a colonial punishment in free India

ON August 15, when the entire country was immersed in Independence Day celebrations, the Bengaluru police was busy lodging an FIR against Nobel Peace Prize-winning human rights advocacy group Amnesty International.

‘Sedition’ is a colonial punishment in free India

Hall of sedition: (From left) Arundhati Roy, Hardik Patel, Kanhaiya Kumar, Binayak Sen and Aseem Trivedi. AFP/PTI



Aftab Alam

ON August 15, when the entire country was immersed in Independence Day celebrations, the Bengaluru police was busy lodging an FIR against Nobel Peace Prize-winning human rights advocacy group Amnesty International. The FIR was on the basis of a complaint filed by the right-wing students’ group the Akhil Bharatiya Vidyarthi Parishad (ABVP), under the infamous 145-year-old sedition laws. As part of its “Broken Families” campaign, Amnesty had organised a function to seek justice for “victims of human rights violations” in Jammu and Kashmir. Some people at the end of the programme had raised “pro-freedom” slogans. Earlier in February, the JNU Students' Union president Kanhaiya Kumar and his colleagues were also arrested on sedition charges following a complaint by the ABVP, leading to countrywide protests and condemnation.  The current incident has again triggered  a widespread debate on the misuse of the sedition law to stifle dissent and its chilling effects on free speech.  

Notwithstanding the Supreme Court's apt remark in Shreya Singhal vs. Union of India (2015) that “When it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme” and Prime Minister Narendra Modi's observation: “Our democracy will not sustain if we can't guarantee freedom of speech and expression,” both the Union and state governments of all political hues unremittingly continue to take measures hampering the right to free speech and criminalising peaceful expression. The NGO Common Cause has taken to the Supreme Court, seeking to put an end to its “misuse and misapplication”.

According to the report of the National Crime Records Bureau, as many as 58 people — 55 men and 3 women — were arrested in 47 cases of sedition filed in 2014 alone under Article 124-A. This was across nine states, with Jharkhand and Bihar together accounting for 72 per cent of the total sedition cases, followed by Kerala, Odisha, and West Bengal. 

Interestingly, most of the sedition cases filed in the recent years have failed to stand up to judicial scrutiny. 

Some of the prominent people charged with sedition law include writer Arundhati Roy, cartoonist Aseem Trivedi, human rights’ activist Binayak Sen, anti-nuclear activist S.P. Udayakumar, Delhi University Professor S.A.R. Geelani, and Patidar quota agitation leader Hardik Patel. It is an irony that the sedition laws once used by our former colonial master to silence the voice of freedom are being arbitrarily used in independent India by our own democratically elected governments to suppress dissecigned to suppress the liberty of the citizen”. 

The first Prime Minister of India, Jawaharlal Nehru, was dead against this law and described Section 124-A as “highly objectionable and obnoxious.” After Independence, the constitutionality of Section 124-A was challenged before the high courts and the Supreme Court. In some of the earliest casecs such as Brij Bhushan vs State of Delhi and Romesh Thapar vs Union of India of 1950, the courts had found the incompatibility of sedition laws with the Constitution as they had violated Article 19(1) (a). 

However, in Kedar Nath Singh vs State of Bihar (1962), despite contrary findings of the two high courts, the Supreme Court upheld Section 124-A. But the apex court considerably narrowed down its scope and emphasised that the charge of sedition must demonstrate an intention or tendency to subvert the government by violent means, and/or intend to create disorder, or disturbance of law and order by a resort to violence. It is an offence only if the words, spoken or written, accompany or incite disorder and violence, mere speech does not qualify as sedition.

 It means mere criticism of the government, however strongly worded, would not amount to sedition. For maintaining a prosecution of sedition there must be a clear and direct link between alleged seditious actions and actual threat of violence. In the Ram Manohar Lohia (1960) case, the Supreme Court ruled that the state must prove the linkage between what is said and the public disorder that the state claims will result because of the speech and that link must be proximate, and not remote, hypothetical and far-fetched.

In the context of the Amnesty International case, it is worth recalling the judgment of the Supreme Court in Balwant Singh and Another vs State Of Punjab case (1995). In this, the Court observed that “Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India… (nor) could (it) give rise to feelings of enmity or hatred among different communities…”. In the light of these observations by the apex court it is really terrible that raising of few slogans evoked such a frenzied and hyper-patriotic response, resulting in the slapping of sedition charges against Amnesty International. 

It is a reminder of the danger the sedition law poses to free speech and expression. The frequent and arbitrary misuse of this draconian law in the most capricious manner by successive governments to curb dissent and criticism in any form tells us why sedition law has no place in a vibrant democracy like ours and must be scrapped from statute books. 

Even Britain, which introduced the sedition law in India, abolished it as a criminal offence in 2009. There is little likelihood that any government will  willingly repeal such a handy weapon. The only hope lies in our judiciary to reconsider its 1962 position and declare Section 124A unconstitutional. 

The writer is a Professor of Political Science and teaches Human Rights at Aligarh Muslim University, Aligarh.

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