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NEW DELHI,SUHRITH PARTHASARATHY: The arrest by the Delhi Police, at the behest of the Home Ministry, of Kanhaiya Kumar, president of the Jawaharlal Nehru University (JNU) Students’ Union, on complaints of sedition, represents the latest deplorable attack on free speech by the Indian state. The move presents with vivid clarity the government’s pointed efforts at quelling any and every form of dissent. It also, through the invocation of Section 124-A of the Indian Penal Code (IPC), 1860, provides a stark reminder of the sheer depravity of some of our antiquated, colonial-era laws.
Mr. Kumar’s arrest followed a complaint made by assorted members of the right-wing students’ body, Akhil Bharatiya Vidyarthi Parishad (ABVP). According to the ABVP, Mr. Kumar was present at a meeting inside the JNU campus organised to protest against the hanging of the 2001 Parliament attack convict Afzal Guru, in which several “anti-national” statements were supposedly bandied about. Thus far, the evidence presented fails to point to Mr. Kumar having actually uttered anything remotely bordering on the controversial. But even assuming he went as far as to question the integrity of the Indian state, his arrest ought to be viewed as a serious affront to liberal democratic values.
In the case of Section 124-A of the IPC, which defines sedition in wide, expansive terms, and punishes the act with imprisonment for life, the danger doesn’t lie merely in its abuse, or even in its potential for causing anti-democratic mischief. Unlike other provisions that might assume a pitiless character based on the nature of their usage, Section 124-A is intrinsically draconian. The problems in the clause are obviously apparent in its wordings, and the purpose that it unequivocally seeks to achieve: a suppression of all kinds of opposition.
A relic of our colonial past
Although sedition was originally a part of the IPC, as drafted by Thomas Macaulay, it was bizarrely dropped from the law when it was enacted in 1860.
This definition of sedition, as is only plainly evident, is exceedingly broadly worded. Its vagueness certainly did wonders for the colonialists. They famously used the clause in three separate, successful trials of Bal Gangadhar Tilak, and, also, later, in prosecuting Mahatma Gandhi in 1922. “Section 124-A under, which I am happily charged, is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen,” said Gandhi, in response to the charges made on him.
During the course of the British rule, there was a general consensus that Section 124-A was intended to indict any speech that as much as questioned the moral superiority of government, that harboured any sentiments of ill feeling towards the state. Policies of government, the judiciary largely agreed, could be questioned, so long as one didn’t excite hatred, contempt or disaffection. As the lawyer and jurist A.G. Noorani once wrote, what this really meant was that the government had to be “loved, not hated”.
The limits of free speech
In 1942, for the first time, the courts in India raised pressing questions against the use of sedition as a weapon to chill all innocent forms of dissidence. Sir Maurice Gwyer, the chief justice of the Federal Court, ruled that “public disorder, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence”.
After the Constitution was adopted in 1950, it appeared Section 124-A would soon be denounced as an abhorrent relic of our colonial past. After all, efforts made by some members of the Constituent Assembly to include sedition as an express ground for limiting speech in Article 19(2) had been successfully resisted. Moreover, the reasoning adopted in the two earliest free speech cases decided by the Supreme Court — Brij Bhushan v. State of Delhi and Romesh Thapar v. Union of India — also pointed to the incompatibility of laws of sedition with the Constitution. In both these cases, efforts to ban publications on the purported threats that they posed to public safety were ruled unconstitutional, since the exception in Article 19(2), as it read then, was restricted to dangers to the security of the state. When the first amendment to the Constitution was introduced, to include public order as a specific limitation to free speech, Prime Minister Nehru was still categorical in his belief that the offence of sedition was fundamentally unconstitutional. “Now so far as I am concerned [Section 124-A] is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass,” he said, in Parliament. “The sooner we get rid of it the better.”
Yet, more than 65 years later, sedition continues to not only remain in the IPC, but also occupies a pride of place in the state’s arsenal. This is because, astonishingly, in spite of two different High Courts having found sedition unconstitutional, in 1962, the Supreme Court upheld Section 124-A, in Kedar Nath Singh v. State of Bihar. Here, the court adopted a flawed premise that the law was enacted in the interest of public order, which was by then one of the specifically recognised limitations to free speech. Although this ruling is in accord with elements of Gwyer’s reasoning, it is clear, as we saw earlier, that the colonial government thought of seditious speech as punishable on its own accord. They saw no requirement for the establishment of any link between such expressions and the maintenance of public order. Even when the first amendment specifically included the interest of public order as a recognised limitation to free speech under the Constitution, seditious speech was still considered as being outside the contours of such constraints. In other words, our lawmakers at the time thought of sedition as being antithetical to the guarantee of free speech. But the court in Kedar Nath Singh ignored all the apparent contradictions in allowing sedition to remain on the IPC. While grounding the legality of the provision on supposed public order considerations, the court also failed to establish any rational test on how to determine when speech in disaffection of the government could be construed as causing a disruption of public order.
A weapon to crush opposition
In the decades since Kedar Nath Singh, Indian free speech jurisprudence has gone through substantial change. The court has proceeded towards expounding something resembling a practical theory that distinguishes advocacy and incitement. In 1995, the court acquitted some men who had raised a number of seemingly incendiary slogans in the wake of Indira Gandhi’s assassination, on the grounds that there existed no link between the slogans and actual threats to public order. Last year, in Shreya Singhal v. Union of India, in declaring unconstitutional the notorious Section 66A of the Information Technology Act, the court ruled that speech howsoever offensive, annoying or inconvenient cannot be prosecuted unless its utterance has, at the least, a proximate connection with any incitement to disrupt public order.
However, in spite of the Supreme Court narrowing the scope of sedition, and in spite of the more recently evolved tests to determine when mere speech or expression can be prosecuted, governments have routinely invoked Section 124-A with a view to restricting even benign forms of dissent. To argue against sedition does not tantamount to arguing in favour of absolute free speech. That words which directly provoke violence or which directly threaten the maintenance of public order deserve censure is unquestionable, especially given India’s constitutional structure. But that’s not what the offence of sedition seeks to achieve. At its core, it is a devastating provision that is meant to assist in crushing all opposition to the ruling dispensation. Its use continues to have the effect of chilling free speech and expression in India. Section 124-A of the IPC negates the right to dissent, which is an essential condition of any reasonable government. Viewed thus, it is Section 124-A that is “anti-India”, that is opposed to the idea of a legitimate, liberal democratic state.
Note: Suhrith Parthasarathy is an advocate practising at the Madras High Court. He is also currently working on a biography of the Supreme Court.