| 19 OCTOBER 2012  | , By Gautam Patel at http://www.prisonerofagenda.com/

The sedition law in India is outdated, ineffective and abused; it needs to go, and citing the ‘Maoist/Naxalite problem’ is no answer.

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Who’s the most seditious of us all?

A few weeks ago, a young cartoonist, Aseem Trivedi, was arrested on grounds of ‘sedition’. He was later granted bail by the Bombay High Court and, in short order, became the focal point of protests against the sedition law. Section 124-A of the Indian Penal Code, it was said, is a relic of the British Raj, ‘outdated’ and has no place in modern society. Some pointed out that few countries today have such a law, and no comparable democracy does. It was abolished in England some years ago, and in the USA has been much diluted by courts.

The Curious Case of Binayak Sen by Dilip D'Souza

Trivedi isn’t the only one to have faced this law. Dr Binayak Sen was actually convicted under it, and as my friend Dilip D’Souza points out in his new book, The Curious Case of Binayak Sen, that judgement is wholly incorrect. The book isn’t a biography of Dr Sen, or even a legal polemic about the decision — it doesn’t claim to be either. What it does, and does with brilliant concision and accuracy, is demonstrate how hollow the case against Sen was.

The charge of sedition was central to Dr Sen’s case. He was accused of being a Maoist, and the evidence for this was, chiefly, that he carried three letters from a person in jail to persons outside — a charge of sedition based on, as D’Souza says, “being a glorified postman”.1 The case against Trivedi is that his cartoons — which are scathing but not terribly funny, and, despite the government’s silly attempt to block and ban are still available on the Internet — criticise, mock and deride the government. In both cases, the accusations are of having acted against the government and this is equated with the “state”. In neither case was there any evidence of incitement to violence. Were Anna Hazare and the India Against Corruption movement not “exciting disaffection” towards “the government”? D’Souza asks. Alarmingly, he then emphasizes his point by quoting from one of my articles of July 2011, and then says this:

“This writer certainly sounds contemptuous of his lawfully established government: it is in fact how he wants to sound. He wants to ‘excite disaffection towards the government’. So has this writer committed sedition? Can he be charged with it?”

I certainly hope not.

And this is the heart of the problem. The ‘government’ is not the ‘state’; the government is the party that is presently voted into power and which runs the administration. The state is the nation, and the concepts of statehood, nationality and national identity cannot be conflated with the government. Governments come and go, though some stick on like limpets when they ought to have gone a long time ago. The state remains, and endures; and the state endures not because of any particular government, but despite it. The preamble to our Constitution opens with the words, “We, the people of India”, not “We, the people presently governed by [insert name of political party]”. And sedition is in the section of the Penal Code that deals with offences against the State; it is no offence to criticize a political party or an administration.

Section 124-A does not make this distinction explicitly. It says:

“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 …”

The crucial parts here, of course, are the phrase “the government by law established” and the words hatredcontempt, and disaffection. Does the phrase refer to the party in administration, or does it refer to the nation and the state? Do the words include mere criticism as well? If it refers to a particular party or this or that government, and every form of criticism, then we have a very real problem, because most of us would then be in jail for a very long time. The most critical problem is that read literally the section runs into a head-on collision with Articles 19(1)(a) and 19(2) of the Constitution which deal with freedom of speech. Article 19(2) places limits on the right of free speech; but it does not use the word sedition. If the right to free speech cannot be curtailed on the ground that it is seditious, then making it an offence violates the right to free speech.

The conflict between the section and the constitutional guarantee of free speech was resolved by a five-judge bench of the Supreme Court in 1962 in Kedar Nath Singh v State of Bihar, in which the constitutionality of S.124-A was challenged.2 Written with exceptional clarity, the Supreme Court judgement traces the long and convoluted history of the law, and the constitutional provisions in relation to free speech. There are many previous cases of relevance to both aspects: the trial of Tilak for instance, and the cases involving free speech. The Court saw that if mere criticism of administration constituted an offence, then the section was clearly unconstitutional. It analysed the three ‘explanations’ that appear below the section, and held that to resolve the conflict, the sedition law must be read to mean that mere criticism, however strongly worded, of administrative or other actions of the Government do not constitute sedition unless they incite violence against the state; and that a “Government established by law” is not the same as the administration. Therefore, to constitute an offence, the words must go beyond mere criticism of a particular party in power; they must attack the state and they must also incite or advocate violence. That, the court said, is the only way to balance both the section and the constitutional guarantee of free speech.

This is not the arcane stuff of law courts. This is a very real and material distinction, one that is vital to the protection of one of our fundamental freedoms. It is also one overlooked by the trial court’s judgement in Binayak Sen’s case and the authorities who arrested Trivedi. Their literal readings mean that everyone, from Arvind Kejriwal to the leader of the Opposition in Parliament and, indeed, the gentleman on television every night, Mr Arnab Goswami, are potentially guilty of ‘sedition’. Many of us are outraged by the antics of our political masters. Yet, we continue to believe in our state, and we do so despite its current administration, not because of it.

Five decades after the Supreme Court decision in Kedar Nath, it is time for Section 124-A to go? In 2010, when England abolished its law on sedition, the Justice Minister said that:

“Sedition and seditious and defamatory libel are arcane offences from a bygone era when freedom of expression wasn’t seen as the right it is today. Freedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticise the state is crucial to maintaining freedom. The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom.”

That is as true of India today as it was in England then. Even our own politicians,from Nehru in 1951 to Veerappa Moily in 2011, have said it has no place in our legal polity. You may or may not agree with Arundhati Roy’s views on Kashmir, but to respond by charging her with sedition is worse than an act of cowardice; unfortunately, stupidity is not a punishable offence.

But India also has this peculiar problem of armed insurgencies in vast areas within its borders, what we call the “Naxalite problem”. Whatever its causes and roots, it is an armed insurrection, and it is not directed at a particular administration, but every administration that functions in the name of India. It is undoubtedly subversive of an established order and incites rebellion. But the problem is far too complex, and the retention of the sedition law has not in any way solved it. It has only been misused in the very manner that England’s justice minister spoke of.

Take out the sedition law; is there not still sufficient strength in the law to punish those guilty of murder and armed attacks, whatever the colour of their political beliefs? Why should we continue to risk these assaults on our constitutional freedoms, risks that are not hypothetical, but are very, very real?

The Kedar Nath judgement quotes from Near v Minnesota, a 1931 US case widely regarded as the first great free press case.3 In the context of free speech and sedition, Near v Minnesota in turn quotes James Madison, the propounder of the First Amendment to the US Constitution, and its Bill of Rights advocating the constitutional guarantees of free speech.

“In every State, probable in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this footing it yet stands. … It has accordingly been decided by the practice of the States, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. …Had ‘Sedition Acts,’ forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press, might not the United States have been languishing at this day under the infirmities of a sickly Confederation? Might they not, possibly, be miserable colonies, groaning under a foreign yoke?

We so easily forget what we must most remember: Our nation’s Independence too was fought for and won by acts that all constituted sedition.

  1. D’Souza, Dilip; The Curious Case of Binayak Senpg 147 
  2. Kedar Nath Singh v State of Bihar, AIR 1962 SC 955 
  3. Near v Minnesota, 283 US 597