The ‘Crime’ of Sedition
Sedition is a political crime. It is the subversion of the social and political order by spoken or written word. It is against the security of the state, “intended to bring the sovereign state into hatred or contempt, to urge disaffection against the Constitution or democratically elected government, or the attempt to procure change in government by unlawful means.” Usually a causal link between the utterance of a word and incitement of violence is made. However, legal precedence shows that speech or thought is inherently seen to be seditious, even when disconnected from violent action. In words that do not cause violence or lead to it, thought is criminalised. Sedition is thus at loggerheads with freedom of speech.
Can thoughts be inherently violent? The answer was in the affirmative for states when they used sedition to clamp down on advocacy of communism, seen as incitement to overthrow the social order. The ‘war on terror’ brought sedition back. The UK Terrorism Bill (2005), for instance, prohibits speech that advocates or ‘glorifies’ terrorism. The definition of terrorism is monopolised by the state. Thus ‘terroristic’ thoughts and beliefs may also include abolition of the death penalty, as was seen in protests against Afzal Guru’s hanging by the Indian state or criticising the British government’s policies of invasion of Iraq. This is an instance of the Orwellian concept of power as mental manipulation of the masses.
India and its History with Sedition
Sedition is codified in Section 124A of the Indian Penal Code. It states that:
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.
Explanation 1— The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2— Comments 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 or 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.
It is a cognizable, non-bailable, non-compoundable offence; punishable with imprisonment for life and fine, or imprisonment for 3 years and fine, or fine. Enacted in 1870, it was a tool of the repressive colonial state and continues to be an important part of the state’s coercive apparatus.
Section 124A was used to curb nationalist dissent. Bal Gangadhar Tilak was put to trial thrice and he raised an important moral argument against his conviction, saying in his trial that the crime was not sedition of the people against the British Indian government (Rajdroha), but the Government against the Indian people (Deshdroha). The most famous trial under the colonial law, perhaps, is that of Mahatma Gandhi. His commentary on the philosophy underling the law must be reread in the current context:
Section 124 A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen… I hold it a virtue to be disaffected towards a Government, which in its totality has done more harm to India than previous system… Holding such a belief, I consider it to be a sin to have affection for the system.
The shaping of India’s future was in this context. The Indian Constituent Assembly, writing on the eve of independence, consisted of those who were often charged with and convicted of sedition. In the draft constitution, ‘sedition’ was included as a basis on which laws could be framed limiting the fundamental right to speech (Article 13), but in the final draft of the Constitution, sedition was eliminated from the exceptions to the right to freedom of speech and expression (Article 19 (2)). K. M. Munshi, lawyer and important activist in the freedom struggle, who advocated for this amendment said that “the essence of democracy is Criticism of Government” and thus it must not be stifled.
The Fundamental Right to speech, enshrined in the Constitution, was antithetical to sedition.
Judicial interpretations of Section 124A are currently based on Kedar Nath Singh v. State of Bihar which held the law to be constitutional. It also placed important guidelines to prevent the misuse of the law:
(S)trong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section.
Justice Markandey Katju stands by this interpretation. Writing in the context of the JNU incident, he says that the shouting of slogans per se is no crime. Calling the demand for azaadi “illogical but not illegal”, he notes how no speech is criminal until violence is committed, organised, or incited.
Politicising Criminal Law
The law has been used indiscriminately to suppress political dissent. As explained by Dhavan, imperial powers of a colonial regime are now normal powers of a ‘democratic’ regime. It is used against human rights activists, artists, academics and students. Binayak Sen, Aseem Trivedi, Arundhati Roy and students of Jawaharlal Nehru University, including Kanhaiya Kumar have all been charged with sedition for their criticism of the government in power and the political system. The crimes have ranged from sending out text messages criticising the Prime Minister, to criticising the government’s inaction during the Gujarat floods and protesting against atrocities committed against Dalits and tribals. The government and nation are not synonymous, but this has been violated time and again.
The Judiciary is becoming increasingly nationalised and blurring the distinction between the ‘seditious’ and the ‘anti-national’ on one hand and the legal and illegal on the other. In Delhi High Court’s order regarding Kanhaiya Kumar’s interim bail, strong nationalist rhetoric overrides jurisprudence. “Our forces are protecting our frontiers in the most difficult terrain in the world i.e. Siachen Glacier or Rann of Kutch…” and the JNU community “…are in this safe environment because our forces are there at the battle field…” The Court simply asserted that “…the anti-national attitude which can be gathered from the material relied upon by the State should be a ground to keep him [Kanhaiya] in Jail…”. ‘Anti-nationalism’, however, is not a penal offence.
Even when conviction is not absolute, harassment using Section 124A deters free speech. The ‘process is the bloody punishment’. The severity of the punishment and the “mere fact that the provision exists and the fact that it allows for the possibility for someone to file a police complaint or threaten police action serves the purpose of intimidating speakers, reader, organizers regardless of the fact that in most cases if it were to go to trial, it would be highly unlikely that the offending act would be found to be in violation of the provisions”. The unspeakable is never spoken.
Reform or Repeal?
The application of the law is riddled with uncertainty and lack of uniformity in application. Free rein has been given to Hindutva forces while liberal voices have been suppressed. Its scope is vague and it has become a political tool for harassment.
The fact is that the Court’s interpretations in Kedar Nath are rarely followed. Thus, room for reform is limited as misuse is inevitable. The temptation to use such a law for political purposes is far too prevalent and it is facilitated by its existence on the books. The Hindu Centre for Politics and Public Policy made a three-fold argument for repealing the law. First, it was conjured by the ‘rulers’ to suppress dissent from the ‘ruled’. Second, it has been used to incarcerate all dissenters. Third, the existing provisions of the IPC are sufficient to address all threats to violence and public order and this law is redundant. The IPC clearly has other offences against public tranquillity as well, ranging from joining, hiring people to join, or continuing an unlawful assembly to rioting, assaulting or obstructing a public servant trying to suppress a riot, provocation with the intent to spark a riot, and promoting enmity between different groups on the basis of religion, race, place of birth, residence, language etc. Section 149 to Section 155 has acts which are violent and against public order.
There is consensus on the wickedness of the law. Responses to it range from proposing greater constraint on its use, amending it to include only that speech which is linked to action, repealing the law since other acts deal with the issue or the most radically democratic view – decriminalise all forms of speech that question, be it the integrity of our borders or legitimacy of the system.
Free speech rests on the assumption that ideas must battle it out in a free marketplace. The prohibition of one kind of thought or shutting down on the other side of the debate can hinder democracy. Questions that “seditious speech” poses must be answered. Further questions must be posed. Yet, those who prohibit this speech have no answer. They only have a flag. In a battle between the nation-state and democracy, the former triumphs when sedition is still on the books.
The Indian state must refashion itself, not as the inheritor of a repressive colonial state but as a modern democratic state. This would mean political persecution for criticism of policy, leaders, and governments or questioning the integrity of the state, its borders or existence (especially by marginalised sections such as the tribals, Kashmiris and Dalits) must be off limits and defended by an independent legal system and free press.