To repeal or not: Nehruvian dilemma on sedition law

By Satya Prakash

WHILE introducing the First Amendment to the Constitution in Parliament in 1951, Jawaharlal Nehru had famously said, “Now so far as I am concerned that particular Section (124A IPC) 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.”

However, the often-quoted statement is only the first part of what he had said. Here is the second part of what he said on sedition: “We might deal with that matter in other ways, in more limited ways, as every other country does but that particular thing, as it is, should have no place, because all of us have had enough experience of it in variety of ways and apart from the logic of the situation, our urges are against it.”

Nehru dithered on the issue and his government went ahead with the First Amendment that strengthened Article 19(2) of the Constitution by adding two expressions — “friendly relations with foreign state” and “public order” – as grounds for imposing “reasonable restrictions” on free speech.

The result: Even 71 years of Independence, India continues to struggle to get rid of sedition that was widely used to crush freedom struggle. A ‘Consultation Paper on Sedition’ released by the Law Commission of India late last month has only highlighted the dilemma of a democratic polity where the quality of relationship between the state and society is often determined by the degree of violence unleashed by non-state actors and the use of force by the state to counter it.

Sedition was not there in the original IPC drafted by Lord Macaulay that came into force in 1862 and was added in 1870. Its ambit was expanded in 1898.

Section 124A says a person commits the crime of sedition if he/she brings or attempts to bring in hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law in India. It can be by words, either spoken or written, or by signs, or by visible representation, or otherwise. It prescribes the maximum punishment of life imprisonment.

It clarified that criticism of public measures or comments on government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression.

Interestingly, the Punjab High Court in Tara Singh Gopi Chand v. The State (1951) had declared Section 124A IPC unconstitutional.

In 1962, it was on the basis of “public order” in Article 19(2) that SC in Kedarnath Singh’s case upheld the validity of Section 124A. But it restricted its scope.

In Balwant Singh’s case (1995), the SC let off two men accused of raising anti-India slogans hours after Indira Gandhi’s assassination in 1984, saying raising of slogans a couple of times – which neither evoked any response nor any reaction from the public – couldn’t attract sedition.

According to the National Crime Records Bureau, 35 persons were arrested on sedition charges in 2016 in the country. The number may not be too high. But there are legitimate concerns as often activists are at the receiving end of sedition law.

Many countries, including the UK and Australia, have abolished sedition. Given the challenges it faces on the internal security front, the state needs a legal tool to protect its sovereignty. But in a democratic society, free speech is equally important.

Sedition law can be repealed as there are many other penal provisions to deal with such acts. Its scope can be restricted and punishment can be rationalised. Also, there can be safeguards installed to check its misuse.

Political thinker Thomas Paine once said, “Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.” This statement sums up the dilemma of a democratic society.