UnknownArrest of Kanhaiya Kumar :

by- Lawrence Liang at kafila.org
News reports are indicating that an FIR has been registered with respect to a public meeting organized on the JNU campus on the evening of 9th February. These reports claim that the meeting was about the hanging of Afzal Guru, and it is alleged that during its course, some people raised incendiary slogans. According to reports, the FIR has been registered under Section 124A of the Indian Penal Code (sedition), and the Police have already arrested one person.
 It is important to note that under the Indian law of sedition, the events at the public meeting, even if completely true, do not even come close to establishing an offence.
In Kedar Nath Singh’s Case, 5 judges of the Supreme Court – a Constitution bench – made it clear that allegedly seditious speech and expression may be punished only if the speech is an ‘incitement’ to ‘violence’, or ‘public disorder’. Subsequent cases have further clarified the meaning of this phrase.
In Indra Das v State of Assam and Arup Bhuyan v State of Assam, the Supreme Court unambiguously stated that only speech that amounts to “incitement to imminent lawless action” can be criminalized.
In Shreya Singhal v Union of India, the famous 66A judgment, the Supreme Court drew a clear distinction between “advocacy” and “incitement”, stating that only the latter could be punished.
 Therefore, advocating revolution, or advocating even violent overthrow of the State, does not amount to sedition, unless there is incitement to violence, and more importantly, the incitement is to ‘imminent’ violence.
For instance, in Balwant Singh v State of Punjab, the Supreme Court overturned the convictions for ‘sedition’, (124A, IPC) and ‘promoting enmity between different groups on grounds of religion, race etc.’, (153A, IPC), and acquitted persons who had shouted – “Khalistan zindabaad, Raj Karega Khalsa,” and, “Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da”, late evening on 31 October 1984, i.e. a few hours after Indira Gandhi’s assassination – outside a cinema in a market frequented by Hindus and Sikhs in Chandigarh.
Thus, words and speech can be criminalized and punished only in situations where it is being used to incite mobs or crowds to violent action. Mere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence unless this condition is met.

Compilation of Resources on Sedition Law

Given that there is considerable debate on sedition right now, and how woefully off some of the reporting and comments on the ongoing JNU case has been, thought it may be useful to compile a set of existing resources to help anyone writing or commenting on the issue.
This is a compilation of resources on various facets of sedition law in India. I have provided a link with a very short summary of what the article/monographs say, and they contain very detailed historical and legal overviews,  highly recommended for anyone writing on sedition and looking for material.

1. National Law School of India University and Alternative Law Forum Report, SEDITION LAWS & THE DEATH OF FREE SPEECH IN INDIA

When the Supreme Court specifically laid down that the provisions of section 124A are only made out where there is a tendency to public disorder by use of violence or incitement to violence, for the other interpretation (earlier afforded by the Privy Council) would conflict with the fundamental right under Art 19(1)(a),31 how is it that so many cases and FIRs continue to be registered against media persons and others for their speeches and writings?
The truth remains that while the SC has stayed firm in its opinion on sedition from Kedar Nath onwards,the lower courts seem to continuously disregard this interpretation of the law, most recently seen in the verdict against Dr Binayak Sen. The law on sedition is being used to stem any sort of political dissent in the country, and also any alternate political philosophy which goes against the ruling party’s mindset. It is a throwback to the days of British Rule, when the speeches of Tilak and Gandhi used to warrant persecution for they spoke out against the British Rule, but one asks in a country providing a fundamental right to freedom of speech, is such criticism not a right of the individual, so long as it remains within reasonable restrictions?

2. Gautam Bhatia, Extracts from Offend, Shock, or Disturb: Free Speech Under the Indian Constitution discussing the history of the judicial interpretation of sedition law in India

Extracts from the book on sedition available here

Gautam Bhatia discusses Kedar Nath Singh’s  case in which the court examined the constitutional validity of Sec. 124A of the IPC. 
He comes to the conclusion that  Kedar Nath Singh  expressly links Section 124A with Article 19(2)’s public order test. In other words, Section 124A is constitutional only because and insofar as it fits within the meaning of Article 19(2)
He adds that cases such as Rangarajan and Arup Bhuyan have narrowed the standard, gradually approaching something akin to the test that exists int he US namely the  Brandenburg test (‘incitement to imminent lawless action’). 
He concludes therefore that 

1. Either Section 124A itself must be interpreted to embody a Brandenburg level of 
2. Alternatively, if Section 124A is still under- stood as embodying Gwyer’s formulation of ‘intention’ or ‘tendency’ to public disorder, then it is at least now unconstitutional and violates 19(1)(a) and 19(2), even though it might not have been in 1957

For a historical background

3. Siddharth Narrain, We are all seditious now, but when did this start?
We are all seditious now, but when did this start?

On sedition: 

4. Sarim Naved, On sedition

On sedition: Sarim Naved

5. Nivedita Menon,Sedition: the highest duty of a citizen?

Sedition: ‘The highest duty of a citizen’

On Procedural Aspects

6. Lawrence Liang, The process is the bloody punishment
The process is the bloody punishment

and finally on a lighter vein, for an ironic comment

7. Lawrence Liang, The Restitution of the Conjugal Rights of the State
The Restitution of the Conjugal Rights of the State