Sedition & the State through prism of law

SEDITION, as defined by the law dictionary, is “an agreement, communication, or other preliminary activity aimed at inciting treason or some lesser commotion against public authority”. Evidently, sedition is a ‘preliminary activity’, not necessarily the completion of an(y) act. So, the essential features thereof are “agreement, communication… other preliminary activity.”

Crime compulsorily has to have ‘intention’ (mens rea/guilty mind) and ‘act’ (actus reus/guilty act) to be proved beyond doubt by the prosecution in a court. And there lies a challenge for the judiciary, called upon to adjudicate between the State and the citizen. Can the latter endanger the might, power and existence of the former? Only the court can decide.

On a closer scrutiny, however, it’s found that the implication of the aforesaid legal definition makes it essential to have at least two persons’ involvement in sedition. Because, both ‘agreement’ and ‘communication’ cannot be made with or conveyed to one’s own self only.

So, can, therefore, ‘preliminary activity’ be ruled out as a “one-time statement or utterance or cause of action” for sedition connected with another act called ‘treason’? It would require a broader scrutiny because it can well be argued that “uttering unacceptable words in the heat of the moment by one individual”, if found vague subsequently, may not be justifiable, thereby giving rise to the needless existential fear to a thriving and vibrant democracy, especially since the Constitution guarantees Fundamental Rights to the citizens. These rights constitute the bedrock of Indian democracy and universal appreciation and credibility of the post-1950 Republic, which functioned in tandem with the exemplary and sterling vigilance of the judiciary.

Sedition is an act of “advocacy aimed at inciting or producing — and likely to incite or produce — imminent lawless action.” In ‘common law’ (the body of law derived from judicial decisions, rather than from statutes or constitutions), sedition included “defaming a member of the royal family or government.”

There, however, exists a fine line of difference between ‘sedition’ and ‘treason’. The former is committed by preliminary steps, the latter entails an overt act for executing a plan. However, if the “plan is merely for small commotion, even accomplishing the plan, it doesn’t amount to treason.”

Thus, sedition — if looked at closely and carefully through the prism of law — cannot be organised in isolation. It has to be interfaced with various provisions of the law, promulgated from time to time. The basic features of the Constitution of India also have to be looked at to avoid isolation or collision with the supreme law of the land.

It’s because the Constitution cannot be seen to be subservient to any clause or section, or be subordinated to, or superseded by, any law. Because, “we the people of India” made the Constitution, which, in turn, created Parliament. Hence, laws made thereunder should not appear to be either trampling upon, or running in contradiction to/of, the basic features of the Constitution of India.

In The Book of English Law (PB Fairest, 1967), Edward Jenks opines: “Sedition — this, perhaps the vaguest of all offences, known to the Criminal Law, is defined as the speaking or writing of words calculated to excite disaffection against the Constitution as by law established, to procure the alteration of it by other than lawful means, or to incite any person to commit a crime to the disturbance of the peace, or to raise discontent or disaffection, or to promote ill-feeling between different classes of the community.

“A charge of sedition is, historically, one of the chief means by which the Government, especially at the end of the 18th and the beginning of the 19th century, strove to put down hostile critics. It is evident that vagueness of the charge is a danger to liberty of the subject, especially if the Courts of Justice can be induced to take a view favourable to the Government.”

The long, steady, painstaking, acrimonious and tortuous discourse on ‘sedition’ squeezes the strongest of spirits, even of the best of both the Bar and the Bench, leaving the accused, counsel and the jury with a sense of an unfinished mission, notwithstanding the words and interpretation of sedition reflected in the judicial verdict.

A sedition case, therefore, invariably has a beginning without an end — irrespective of difference or diversity, monarchy or democracy, dictatorship or oligarchy, or ideology in a given situation, ‘sedition’ will always be the ultimate means of fixing the perceived ‘wayward’ elements.

In the Indian context, although sedition has existed in Section 124A of the Penal Code since 1860, the ‘real’ deterrent Act thereof appeared with the Unlawful Activities Prevention Act (UAPA) in 1967, essentially to combat ‘terrorism’ as a tool of ‘sedition’.

Primarily, it was to combat the Communist Party of China-masterminded/commissioned Naxalite movement which began in the areas of Naxalbari, Kharibari and Phansidewa in West Bengal. Considered (rightly, of course) as proxy foot soldiers of the Chinese PLA, the first salvo was fired on May 24, 1967, at a stone’s throw from East Pakistan, Bhutan, Sikkim, Nepal, and China. Little wonder, the then Government of India, without wasting time, introduced the UAPA on December 30, 1967.

Did the UAPA-1967 run contrary to the Constitution guaranteeing freedom of speech and expression as a Fundamental Right in Article 19(1)(a)? Literally, ‘yes’; but legally, only the judiciary can decide on a case-by-case basis, because none else has the wherewithal and expertise to see through the merit of the case and the applicability of law thereon.

Contextually today, however, US Chief Justice Earl Warren’s era (1953-1969) comes to mind. Like India, the US too faced sedition trials and tribulations for years. Nevertheless, it’s the judiciary under Warren which took charge and changed the face of US democracy forever through epoch-making judgments, thereby strengthening democracy from the roots rather than uprooting it through mindless verdicts. The judiciary liberated American democracy.