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Mainstream, VOL LVIII No 36, New Delhi, August 22, 2020

150 years of Law of Sedition - Time to do away with this anachronistic piece of legislation | Jannat

Friday 21 August 2020


by Jannat*

"There is no crueller tyranny than that which is perpetrated under the shield of law and in the name of justice" - Montesquieu, French Philosopher

Could sloganeering like "Pakistan zindabad", supporting the Pakistan team in a cricket match, participating in a play that critiques the government, protesting the government policies or dissenting against the government be regarded as offences against the state? If the history of prosecutions under sec 124A of Indian Penal Code (IPC) are of any indication, the answer is yes. The Chapter VI of IPC, deals with offences against the state. Sec 124A defines the offence of sedition. Any speech or write up that attempts to disaffection towards the government is sedition. The punishment is stringent. If sentenced, you can land up amidst high walls of prison for your life time.

History of Law of Sedition

When did the Law of Sedition creep into Indian Penal Code? How did it evolve with time? How did it play a sinister role in our freedom struggle? How could it find a place in the Republic of India too, despite the fact that it was hated by the freedom fighters?

Answers to the questions above are given by Supreme Court Advocate, Chitranshul Sinha in his book “The Great Repression: The story of sedition in India”, published by Penguin Random House India in 2019. The book deals with the Law of Sedition from its origin to the present day. It is divided into 3 parts with 11 chapters and has 261 pages.

The first section deals with the origin of law entwined with the beginning of the direct British rule in India. The first law commission was formed under the chairmanship of Lord Thomas B Macaulay. Lord Macaulay took the initiative to reform the Indian criminal law and prepared the draft of the Indian Penal Code in 1837. Due to official scrutiny and delay it was passed late in 1860. Initially, there was no Sec 124A. The necessity for the law of sedition was felt by the British during the Wahabi movement and Revolt of 1857. Consequently, Sec 124A was inserted by an amendment in 1870. After introducing Sec 124A, the British made 2 more preventive laws to complement it-1) Dramatic performance Act, 1876, 2) Vernacular Press Act, to curb press freedom and curtail cultural activities.

Seditious law - An instrument to oppress the freedom movement

The second part deals with the development of the law of sedition in India’s freedom movement. There was no prosecution or trial under sec 124A for 21 years until 1891. The first trial was against Bangobasi a Bengali newspaper that published articles against the British enraged by the Age of consent Act, 1891 which raised the consent from 10 to 12 years, making intercourse with any girl below 12 years, with or without consent, an offence amounting to Rape. Many orthodox Hindus regarded it as an encroachment to their tradition. In 1895 another famous trial of Lokmanaya Bal Gangadhar Tilak took place. Tilak was accused of publishing an article in his newspaper Punjab Kesari which allegedly led to the assassination of Mr. Rand, collector of Pune. He defended himself in front of the jury and pronounced himself loyal to the government. Yet, he was found guilty. Mahatma Gandhi called Sedition, “The prince among the political sections of IPC designed to suppress the liberty of citizens. Affection cannot be regulated by law. If one has no affection for the system, one should be free to give fullest expression of his disaffection, so long as he doesn’t contemplate, promote or incite violence”. Talking about sedition Maulana Abdul Kalam said, “...nothing can be a higher crime against the domination of government, as at present established, than the agitation which seeks to terminate its unlimited authority in the name of liberty and justice. I fully admit that I am not guilty of such agitation, but that I belong to the band of pioneers who originally sowed the seeds of such agitation in the heart of our nation and dedicated their whole lives to the cherishing and breeding of this holy discontent.” Nehru then favoured disloyalty to subjugation and said: " The Congress has nothing to do with loyalty. We are disloyal and it is our business to preach disloyalty. Are you going to be loyal to those people who humiliate your people, who degrade your country, or are you going to be loyal to your country and people?" Gandhi used much strong words excoriating the sedition. He fervently argued to repeal the law. But the Britishers continued to use against the freedom fighters sparing none. Gandhi opposed the seditious law- His disciples didn’t heed his voice

The third part deals with Sedition in the modern Republic of India. Maximum members of the constituent assembly were victims of the law of sedition, but still, the colonial law continued its presence in the New India. Sedition was made an exception to freedom of speech and expression with libel, slander, and defamation. Somnath Lahiri, a member of the Constituent Assembly from Bengal, remarked that the fundamental rights had been framed from the point of view of a police constable. He expressed his dismay that the provision could leave India worse off than the earlier regime. His severe opposition led to the removal of the word sedition from the final draft, but they didn’t repeal sec 124A of IPC. Post-independence, in 1951, the Punjab high court ruled sec 124A to be unconstitutional. Allahabad High Court too came out with similar ruling in support of free speech. But these judgements were not palatable to the Nehru’s regime. To negate its effect, it passed the 1st amendment. Restrictions were put on freedom of speech and expression to do so in the interest of public order, the security of the state, friendly relation with foreign states and to prevent incitement of offence.

Nehru’s double standards

Nehru castigated the law of sedition as highly objectionable and obnoxious. He felt that it should have no place in free India. But that was before 1947. Brown Sahibs replaced the White Men swallowing their colonial oppressive ideology. Despite his past avowed antipathy, Nehru never attempted to repeal the act. The Government solidly stood behind to keep the sedition in statute books. In Kedarnath v State of Bihar, 1962 the constitutionality of Sec 124A was challenged. The court held that sec 124A was not violative of the Constitution of India. The court also held that though the section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the ambit of permissible legislative interference with the fundamental right. Sec.124A of IPC had nine lives.

Sedition- As a weapon to suppress dissent

According to NCRB in 2016 35 cases were registered and 48 were arrested and only 3 cases were concluded with a single conviction and 2 acquittals. The law is misused time to time by the Party in power to silence the voice of independent journalism, writers, activists, intellectuals, protestors, the opposition leader, etc. Dr Binayak Sen, Arundhati Roy, Kanhaiya Kumar and several JNU students, Hiren Gohai, a well- known Assamese intellectual were all slapped with charges of sedition. The struggle of Kudamkulam to stop the Nuclear Powerplant met with by the unprecedented repression. As a part of it over 8000 villagers were slapped with Sedition cases en masse. The Pathalgadi movement of Jharkhand Tribals faced sedition cases. In one district of Kunti, the BJP government foisted cases on 10000 cases. Pathalgadi movement raised the banner of self-rule.

The author, Chitranshul Sinha has not shared his personal opinion rather has left to his readers to conclude on their own. He has explained the story of sedition unhurriedly which makes it easier for readers to comprehend the law and its development with time. He has done profound research and minor details are shared with readers. He had made a solid argument to repeal this weapon of tyranny as done by the UK, the country of its origin and other countries. In the USA the crime of sedition was eliminated by the famous libel case of Sullivan v New York Times (1964). Many Western countries have documented this law as draconian and have reformed, restricted or have scrapped the law. At present Canada, Hong Kong, India, Ireland, etc. have this oppressive law. There is no place for this law in a democratic republic. At the time when the elected government has become a tyrant and is using sedition and preventive detention as a weapon to silence dissent, it would be thought-provoking to read this book. Bhagat Singh was also sentenced under Sedition, which in these days is used against those raising their dissent to the flawed policies of the government. Justice Deepak Gupta (retd) said one could not label dissent as anti-national as right to disagree is an inalienable democratic right. “To learn who is ruling over you, simply find out who you are not allowed to criticize”, said Voltaire. World over fascist forces are on the rise like a pandemic disease. Intolerance is reaching its crescendo. Attack on democratic rights is on its precipice. At this juncture, how seditious law is a blot on fundamental right to free speech is brought in its historical context. The book could be a guide to activists who are calling for the repeal of the draconian penal provision.

(Jannat, student BA. LLB, IInd Year, Chandigarh University, Gharuan, Mohali)

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