A SHOWPIECE OF COLONIAL HANGOVER?
Jyotsna Gabriel & Kush Agarwal ((Students of 2ndYear B.A, LL.B, School of Law – Christ University)).
‘AUTONOMY IS AS AUTONOMY DOES’
An analysis into the draconian law paving its journey all the way from the colonial era making such act punishable with imprisonment for life. Government today does not recognize the fact that sedition laws today are not feasible in the turbulent politics of the Republic of India, which is a strong, vibrant and participative democracy. What is more, it seeks to negate the very idea of universities, where freedom, inquiry, questions, dissent and debate constitute the essential foundations of learning that make for good citizens in a democracy. An effort is made by the authors to analyze the present law of Sedition in India vis-a -vis its clash with freedom of speech and expression.
Every man has a right to be heard; But no man has the right to strangle democracy with a single set of vocal chords.
– Adlai Stevenson
The only factor that distinguishes a life of a free man or women from that of a slave is FREEDOM – Freedom to speak, to express ((What is the true meaning of freedom according to you? ,Saurabh Jain , available at https://www.quora.com/What-is-the-true-meaning-of-freedom-according-to-you last seen at 20/10/2016)). Freedom is not just the lack of restrictions but also the ability to stand alone, unsustained by anything else, where the words come out from the depth of truth and fearful authorities do not impediment this flow. But unfortunately India never got over her colonial masters. We continue where British left. Ever since Thomas Babington Macaulay drafted ‘crime’ of ‘sedition’ (Section 124A) as Section 113 in IPC draft of 1837 originally to deal with “increasing Wahabi activities that posed a challenge to the colonial government”, it has continued to be a constant threat to free speech. The Sedition Laws of the country thus speaks of a bitter truth:
“Whoever…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…or with imprisonment which may extend to 3 years” besides fine.
In the beginning, Section 124A criminalized excitement of “DISAFFECTION” only, but in 1898, “HATERED /CONTEMPT” was added as an amendment. The word ‘Queen’ which was further replaced by ‘Government’ in this law labels a person as criminal if he hates ‘State’ or develops contempt, enmity or any form of ill- will for it. This was initially used during the British regime against the rebels and aftermath used as a weapon against criticism to suppress the expression. Mahatma Gandhi himself was prescient in recognizing the fundamental threat it posed to democracy when he called it ‘the prince among the political sections of the Indian Penal Code’ designed to suppress the liberty of the citizen ((Noorani, A.G. Indian Political Trails. New Delhi: OUP. 2009, p.235)). Not just sedition but blasphemy laws are also becomes an hindrance to free speech to which Pakistan is in forefront by the virtue of being an Islamic state but India shouldn’t have place for such black laws because she is world’s largest democracy with lengthiest written constitution! These laws thereby prevents dissent hence should be subjected to strong amendments.
History of ‘sedition’ states that many of the freedom fighters were victims of this law straight from Bal Gangadhar Tilak, who was tried thrice for Sedition and his further imprisonment to Mandalay jail to nationalists like Annie Besant and Mahatma Gandhi tried at the time of Independence. Britisher’s used sedition laws to quell the Indian freedom struggle and retain its imperial power.
After the establishment of High Courts and the advent of Constitution, many High Courts were in favor of striking down Section 124A as being void. Justice Patanjali Sastry pointed out the deletion of Sedition as being deliberate as laid in Romesh Thapar vs. State of Madras ((AIR 1950 SC 124)).
Some High Courts in the late 1950’s declared Section 124A as being voilative of Article 19(1)(a) . One such decision being In Ram Nandan vs. State ((AIR 1959 SC 101))a full bench in the Allahabad High Court held sedition to be void and unconstitutional restricting freedom of speech declaring it ultra vires. However, the decision of the Hon’ble High Court was overruled by the Hon’ble Supreme Court overruling its decision and validity in the case ofKedar Nath Singh v. State of Biharconsidering the scope of subversive speech and thus holding it intra vires. This decision laid down the law of sedition of what it is interpreted today.
In this decision 5 appeals were clubbed together to discuss the constitutionality. Further the change which was brought in Kedar Nath vs. State of Bihar((AIR 1962 SC 955))was put to test on the touchstone of Article 19 in the case of Tara Singh Gopichand vs. State ((AIR 1951 East Punjab 27))before the Punjab and Haryana High Court where it was struck down as being contrary to freedom of speech and expression. In Balwant Singh vs. State Of Punjab ((1995 (1) SCR 411))the court was of an opinion that mere raising of slogans and absence of valid proof in other persons joining former in raising those slogans will not amount to sedition. It laid down guidelines as to how police should conduct itself in situations like these and use of excessive force can be counter-productive.
The case of Meerut conspiracy in which the accused were charged with conspiracy to wage a war for having formed a union on the lines of trade unions of soviet Russia which led their conviction in sessions court which further the Allahabad court held that unless it’s a conspiracy to overawe the government using means of criminal force, such act will be considered wrong.
Of these instances, it is wrong to say that sedition shouldn’t be a law at all, in fact, in order to prevent the abuse of democracy and its attributes, there should be a license to the same, but this in no way should mean that it curtails the Fundamental Right in itself…after all we are the citizens of the country and not the citizens of the government! Instances of the same can be found when recently in the news an image where instead of three lions of Ashoka Pillar, Aseem Trivedi drew three wolves oozing out the blood , and altered “Satyameva Jayate” (Truth alone Triumphs) into “Bhrashtameva Jayathe” (Corruption alone Triumphs) ((India Today, Anti Corruption cartoonist Aseem Trivedi arrested on sedition charges, September 9, 2012 available at http://indiatoday.intoday.in/story/anti-corruption-cartoonist-aseem-trivedi-arrested-on-sedition-charges/1/216643.htm last seen at 22/10/2016)).The question here which comes to the mind is – Is it actually seditious? Is it actually an insult to the National symbol? If it is actually considered seditious every person who is charged with corruption too shall be sent to jail. Drawing of a cartoon or writing an article relating to whatever serious meaning it may communicate shouldn’t be considered ‘seditious’. Trivedi only expressed his mind set of an agitated India considerate about his country, where the politicians and the bureaucrats have turned National symbols into symbols of Danger, nothing more nor less! However his arrest has been heavily criticized in India terming it as ‘stupid move’. Back to the philosophy classes, one can actually relate the issue of free speech and sedition to Roscoe Pound’s Theory of Social Engineering, in a way that Free speech and Sedition have conflicting interests much like Section 499 of IPC and Article 19(1)(a) of the Indian Constitution. Article 19 of the Constitution gives every citizen six fundamental freedoms and one of them happens to be of ‘free speech and expression’. These rights are subjected to reasonable restrictions in public interests under vague and ever inclusive ambits of public order, morality, public health, national security, etc. We believe that Laws should aim at reconciliation of conflicting interests in the society but looking at the flipside to it , sedition laws have been time and again misused for political mileage. Anyone who dares to question the actions of his political masters is instantly labeled as anti-national and is slapped with sedition charges against him.
Free speech is the backbone of any democracy and such reckless and impulsive behavior by authorities is not only uncalled for but hinders free thinking and exchange of ideas. Sedition has been a lethal tool of right wingers to suppress left wing dialogs and how can one expect winds of change if the vocal cords are strangled with wires of sedition? This is not just miscarriage of justice but death of democracy by grossly violating human rights…! On one hand , we claim to be the most tolerant and diversified nation and on the other we declare our own citizen as anti-nationals when he talks about his wife pondering to leave the country in a press conference negating and neglecting his endeavors towards bringing national awareness through his sitcom. A government which cannot be tolerant to ideas and opinions of its own people is a stigma on the face of ‘effective governance’ and puts democracy in a vegetative state or on ventilation or life support. It’s like polity playing “Big Brother” from Orwell’s much celebrated “1984” where every idea, opinion, action or emotion against the villainous Big Brother was condemned and punished much like modern North Korea. There, thus, goes a cycle which facilitates change in any state and the cycle is of thesis, anti-thesis and synthesis. Cycle kicks off with an idea which is thesis and opposition to that idea is its anti thesis leading to violence. The tussle between both gives one suo motu synthesis which is a new idea all together and that becomes instrument of change ….but unfortunately every anti-thesis is adjudged in the light of sedition or “Deshdroh”. Hobbes in his book “Leviathan” talked about an imaginary sea monster that was responsible to protect the rights of its citizen in exchange of consensus from citizenry. In this case the polity plays the role sea monster using sedition laws to oppress dissenters.
It is the fundamental duty of every government irrespective of its form to respect the rights of life, liberty and property of its citizens and it would a cardinal sin on its part failing to do so. Law of sedition is a blunt sword and can be used in multiple ways but it is rather unfortunate to witness execution of opinions on the blade point of this sword. One cannot do much about sedition as a law because it derives its authority from the Constitution which in turn derives authority from us, the People of India. We the people of India are ‘Grundnorm’ for every law that is operative in Indian domain including sedition. This law in question which should be largely apolitical has become a subject of vote bank politics. Advocates who referred to Bruhan Whani’s killing as Army Excessive were also called names like anti-nationals and pseudo liberals and the very act of filing a petition in the Apex court of the land was termed seditious which is a constitutional right.
Instances like: Amnesty International being charged with sedition for organizing a debate on Kashmir issues. A folk singer in Tamil Nadu being charged with sedition for singing songs mocking laws in Tamil Nadu relating to Liquor. 3000 people collectively being charged for sedition for protesting against a power plant. In UP Seema Azad and her husband and two people from the Union of Civil Liberties being arrested and being slammed with sedition. Separatist elements in Jammu and Kashmir and media houses giving platform to them have often been accused of sedition. A PIL was filed by Common Cause, an NGO to repeal sedition laws where Supreme Court in response to the petition stated that criticizing or defaming Government or state’s instrumentality will not fall within the ambit of Section 124-A of the Indian Penal Code. The most trusted test to ascertain if the act was seditious or not is by judging if it was capable enough of inciting violence which in itself is vague because it depends on the sentiments and fundamentalism of people which is very objective in nature.
Discussion on the lines of any public policy is not termed as sedition but words like ‘ disaffection’, ‘ enmity’, ‘ disloyalty’, in the bare provision has been time and again criticized by legal scholars and is in dire need for explanation to provide clarity. Charge of sedition is a cognizable offence and police might not have proper training to label an act of being seditious or not.
Crimes Record National Bureau has no separate head of sedition which would inform one about the number of sedition cases filed in each state each year. Anti-sedition advocates believe that the state is not misusing sedition law but using the way it is meant to be used that is to suppress any form of dissent or neutralize any threat in the myth of national security. Reading banned literature has also lead to sedition charges. Should sedition be removed from Indian Jurisprudence? Still remains a topic for hot debate. Law in itself is still Victorian – A still showpiece of Colonial Hangover where the parent Nation has already repealed it. Pro-sedition activists believe that sedition laws act as sword of Hercules hanging on the necks of persons conspiring evil designs against the state and fourth generation warfare is much more lethal and dangerous than an invading army because enemy is invisible and is one amongst the people. Naxalism is an offshoot or evil child of sedition.
SECTION 124A BEING AN OBSOLETE CRIME INTERNATIONALLY
Various countries have repealed laws of Sedition:
1.The United States repealed sedition act of 1918 thereby reducing the Smith Act 1940 into a dead letter followed by the directions given by the Supreme Court, bringing forth the First amendment of Constitution of United States of America which is on freedom to speech is strong enough to give legal immunity to Presidential candidates against communal hate speeches. Canada is a representative democracy and no sedition case had been reported in the last five to six decades.
These countries only charge individuals on the lines of sedition in the ‘Rarest of the rare’ cases thereby supporting free speech and think tanks.
- Ever since England decriminalized Sedition in 2009, debates arise weather India in 21st Century especially after Kedar Nath case is rarely applied in spirit. Human Rights activists have called this as a BLOT on Indian Democracy ((Journey of Sedition, Karan Shah)). Recently UK abolished offences of sedition and seditious libel. No doubt the Sections in IPC that deal with ‘conspiracy to wage a war against government and sedition are draconian. It is most unfortunate that sedition was not removed as a crime from the IPC but was just deleted as a ground for restriction on the free speech.
- The whole law pertaining to sedition was repealed in New Zealand under the Crimes (Repeal of Seditious Offences) Amendment Act 2007 thereby removing the crime of Sedition altogether from the statue book of New Zealand.
- Sedition has been declared ‘unconstitutional’ in Indonesia, following in the footsteps of their Dutch Colonial Masters.
- The Republic of South Korea did away with its Sedition laws during democratic and legal reforms in the year 1988.
Today nationalism is decided by whether one can say “Bharat Mata Ki Jai” or not. Our Constitution gives people the right to say it as well as not to say it. People should have the right to choose whatever they believe is correct or not and that’s democracy. India needs a ‘Kaniya’ as much as it needs a ‘Krishna’. Until the time sedition remains, the Indian Penal Code will never be an Indian Code but will continue to be British Penal code. If inspiration is drawn from England in every aspect, why not make the law obsolete as done by England itself? There was a time when being charged under sedition in pre independent India was considered to be an honor because accused joined the ranks of Bhagat Singh and MK Gandhi but today Humanitarians like Binayak Sen with national and International support and Arundati Roy who is known to have controversial views against the state are being framed for sedition. Hence as Law Commission Chairman Justice BS Chauhan rightly says there is a need to revise sedition laws as it was drafted more than 150 years ago to the changing needs of society. Time has come where we take appropriate measures and try to amend this tool which hinders the successive ‘democratic’ political government. International Covenants like Article 19 of United Nations Declaration of Human Rights (UDHR), 1948 and the International Covenant on Civil and Political Rights (ICCPR , 1966 talk about upholding freedom of speech and expression. Sedition has become a weapon to neutralize all opinions against the ruling party and tremendous rise in the number of cases filed in the name of sedition bears a testimony to the fact. Article 19 clause a of the Constitution Of India is a fundamental right and threshold of restricting it under Article 19 clause a sub-clause 2 is rather high. Sedition is the gravest offence one can commit when it comes to the violation of Article 19. Media which is the ‘Fourth pillar of democracy’ have time and again branded persons accused of sedition as seditious and anti-national when the matter has been pending in the court of law and such labelling has a strong bearing in the minds of the masses and the judge. All said and done one cannot undermine and underestimate the importance of sedition as a law because India has had social movements which were seditious in character and took an ugly turn later. Modern Indian state which had transformed from a military or police state to a welfare state is exactly doing what her British predecessors did and that is manipulating legal machinery to crush dissenters and thus law of sedition should be amended at once. Nationalism shouldn’t be used as an excuse to facilitate litigation on the grounds of sedition. Its time Section 124A is sent to where it belongs- to the scrapheap of repealed laws. It is on the readers to decide how far the current law is just and as natural law school advocates believe and so does the author that: Lex ininusta non est lex.
“Your freedom ends where my nose begins but one should not have a Pinocchio’s nose.”
Disclaimer: The views expressed this article are that of the author alone and do not represent the views of the Lex-Warrier: Online Law Journal, OR its editors OR its managers.