Being thin-skinned is our birthright and we shall have it: Maharashtra Chief Minister Devendra Fadnavis and Prime Minister Narendra Modi at the formers swearing-in ceremony in November 2014. Credit: PTI

Outside the central courtroom of the Bombay High Court stands a marble plaque inscribed with the following words – “In spite of the verdict of the jury, I still maintain that I am innocent. There are higher powers that rule the destinies of men and nations; and I think, it may be the will of Providence that the cause I represent may be benefited more by my suffering than by my pen and tongue.”

These words were uttered in 1908 by Lokmanya Bal Gangadhar Tilak, when Justice Dinshaw Davar asked him if he had anything to say after a jury found him guilty of sedition under section 124A of the Indian Penal Code by a 6 to 3 majority. The section, of course, defines a seditionist as someone who “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 1India.”

While piloting the first amendment to the Constitution – which imposed reasonable restrictions on free speech – Jawaharlal Nehru thought this section was an example of an unreasonable restriction . He said, “Take again section 124A of the IPC. So far as I am concerned, that particular section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons — in any body of laws that we might pass. The sooner we get rid of it the better.”

Sedition in the criminal sense began to be defined in Elizabethan England as a crime short of treason but as a “notion of inciting by words or writings disaffection towards the state or constituted authority.” Sedition as a crime found its way into the IPC  as section 124A in 1870 when British India faced an incipient Wahhabi threat. Subsequently, it proved to be a useful tool for the colonial administration to keep order among restive natives. Despite Nehru’s protestations, the law remained has on the statute books of independent India. Over the years, it has been invoked against sundry communist speeches and communalists of all hues.

Reading down sedition

Doubts arose about the constitutionality of the section after the fundamental right to freedom of speech was guaranteed by the constitution in 1950. Answering these doubts in 1962,  the Supreme Court’s Constitution bench ruled in Kedar Nath Singh:

“The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence… It is only when the words, written or spoken, etc. which [sic] have the pernicious tendency or intention of creating public disorder or disturbance of law and order that  the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order.

The Supreme Court’s balancing act has, however, been largely ignored by administrators when it comes to enforcement. Many a person – whose inconvenient view sparks outrage among administrators and policemen – ends up being charged under this section or sections 153A and 295A. However, most of these prosecutions are withdrawn or fail when faced with strict legal scrutiny from a superior court. Arundhati Roy and  SAR Geelani faced prosecutions for their remarks at a press conference in 2010. Binayak Sen was convicted by a Chattisgarh Court around the same time for possession of Naxalite literature deemed seditious. His appeal is pending and the Supreme Court has granted him bail. In 2011, sedition charges were invoked by the Bombay police against a cartoonist, Aseem Trivedi for some rather innocuous cartoons drawn during the Anna Hazare movement.

Maharashtra’s guidelines

A hundred years after the Tilak trial, the sedition question has returned to haunt the same court. In proceedings arising out of the arrest of Trivedi, the Bombay High court in March this year recorded a statement from Advocate General Sunil Manohar, who submitted that the state government’s home department would issue the following guidelines in the form of a circular to all police personnel.

This is what the Maharashtra government told the High Court:

(1) In view of the felt need to issue certain guidelines to be followed by Police while invoking Section 124A IPC, the following pre-conditions must be kept in mind whilst applying the same:

(i) The words, signs or representations must bring the government (Central or state) into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the government and the words/signs/ representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder;

(ii) Words, signs or representations against politicians or public servants by themselves do not fall in this category unless the words/signs/representations show them as representative of the government;

(iii) Comments expressing disapproval or criticism of the government with a view to obtaining a change of government by lawful means without any of the above are not seditious under Section 124A;

(iv) Obscenity or vulgarity by itself should not be taken into account as a factor or consideration for deciding whether a case falls within the purview of Section 124A of IPC, for they are covered under other sections of law;

(v) A legal opinion in writing which gives reasons addressing the aforesaid must be obtained from law officer of the district followed within two weeks by a legal opinion in writing from the state’s public prosecutor.

2. (i) All unit commanders are directed to follow the above instructions scrupulously.
(ii) It must also be kept in mind that the instructions mentioned above are not exhaustive and other relevant factors depending from case to case may also be kept in mind while applying section 124A of the IPC.

It was in pursuance of this submission in court that a circular was issued by the home department of the government of Maharashtra advising all policemen about when sedition charges could be properly invoked. However, it appears that the government has badly mistranslated the guidelines to secure for itself a draconian expansion of the ambit of the parent section.

Crucial caveat lost in translation

The circular when translated from Marathi reads:

“Words, signs or representations to be treated as seditious if they are against a person who is shown as representative of the government.”

Thus all and any criticism of any government representative, politician and bureaucrat alike, runs the potential risk of some policeman carting away the citizen on a sedition charge, that is punishable with a sentence of life imprisonment. This is grossly disproportionate punishment, calculated to have a chilling effect on the exercise of free speech, by critics of the government and citizens alike.

The circular seeks to make seditious the terms “drohbhavna” and “apreeti” – the English equivalents of which are conspicuous by their absence from both the statute as well as the guidelines suggested to the high court. Because the former easily translates into “rebellious thought(s)” and the latter into “unpleasantness”, prima facie, they fly in the face of the court’s mandate and the government’s solemn assurance.

The first guideline submitted to the court states the section would be invoked only when there was “incitement to violence”. It was thereby intended that only sufficiently incendiary speech or expression would invite criminal liability under 124A. The circular sent to the police, by using the word “athva” (“or”, in Marathi), makes the requirement of  violent incitement purely optional at the instance of the police official. Thus, it can be fairly stated that a mandatory requirement has been turned into an optional factor.

The resultant effect of this ill-considered circular is to turn a tough, rarely used provision of law into an optional weapon of oppression in the hands of a police officer. It threatens a life sentence for speech which –  even if criminally prosecuted for defamation – would entail only a sentence of up to two years of simple imprisonment. It has confused possible non-violent disaffection towards elected governments with violent incendiary speech, without which a sedition charge cannot stand. To put it charitably, the circular is an example of bad translation, which makes for unconstitutional abuse of a provision which itself survived scrutiny by the Supreme Court only after it read down the section to make it constitutional. The circular will not stand legal scrutiny and the Maharashtra government is best advised to withdraw it, rather than risking an unnecessary defeat in court.