Satvik Varma

The timing of the charge sheet filed by the Delhi Police, earlier this week, relating to certain acts alleged to have taken place at Jawaharlal Nehru University (JNU) in 2016 has been questioned by many. The former president of the JNU Student’s Union, Kanhaiya Kumar and many other student activists including Umar Khalid and Anirban Bhattacharya have been charged with Sedition for having supposedly raised ‘anti-national’ slogans.

Notably, in 2016 itself a Magistrate had conducted an inquiry and concluded that in fact, no anti-national slogans were raised and the videos relied upon were doctored/morphed. This raises many questions regarding what new evidence and information has become available for the Police to file the charge sheet and why it took three years to do so. It also raises many questions about the law relating to Sedition, its constitutional validity, the circumstances under which it can be invoked and whether it should still occupy a place on our statute books. 

Sedition is not defined in Indian statutes. It appears only in the marginal notes to Section 124A of the Indian Penal Code. The Section mandates two requirements. First, the accused must bring or attempt to bring into hatred or contempt or excite or attempt to excite disaffection towards the Government of India. No disturbance or outbreak is actually required to be caused, the offence is committed if the accused attempted to excite rebellion or hatred. Secondly, such act or attempt should be done by words, spoken or written, or by signs or visible representation. 

Periodically, Sedition laws are used to quell political dissent. And each time that happens, it throws up a fresh debate about free speech and the State’s ability to impose reasonable restrictions to curtail such freedom. Questioning Government action and criticising its inaction is important, necessary and an essential part of democratic functioning. In fact, the explanations to the statutory provision provides exemptions for criticism and comments on Government actions, however strongly worded, provided they are within reasonable limits. It is only when the words or visible representation cross the limits of fair criticism and has the tendency or intention of creating public disorder or disturbance of law that Sedition comes into play.

The legal provision of Sedition has withstood the test of judicial scrutiny by a Constitution Bench of the Supreme Court which held it to be intra-vires i.e. Constitutional, albeit noting that “the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government.” In fact, the Constitution Bench notes that “a citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.” In doing so, the Court has sought to balance the freedom of speech with the security of the State and public order. 

In our current socio-political milieu, it may help to recall what else the Constitutional Bench observed “comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.”

One may recall that the last time Sedition related cases made it to the headlines was in 2012 when Aseem Trivedi had been charged and arrested for his distasteful and offensive cartoons. Basis the opinion of the Advocate General of Maharashtra, the Mumbai Police dropped charges against him under Section 124A and the final judgment of the Bombay High Court in 2015 notes certain guidelines issued to the Police department while invoking the provisions under this Section. Similar guidelines have previously been issued by the Constitution Bench and one really wonder if all of those have been followed while charging Kanhaiya Kumar and other student activists? 

One may also recall that almost immediately after the JNU incident, Shashi Tharoor had moved a Private Members Bill to amend Section 124A. This Bill suggested that only those actions and words which directly result in the use of violence or incitement to violence should be termed seditious. Well intentioned, but unfortunately this amendment didn’t see the light of day. 

Statistics from the National Crime Records Bureau published in 2017 reveal that in 2016 the Police disposal of cases relating to Sedition was in single digit and the Court disposal of cases for the same period was less than a handful. This may partly be because to bring a charge under Section 124A requires the prosecution to prove beyond reasonable doubt that the intention of the speaker or author of the Seditious material was with a view to excite disaffection against the Government of India. This is almost impossible to achieve. The quintessence of Sedition is intention and in determining one’s intention the Courts have held that the speech has to be taken as a whole and has to be reviewed freely and fairly without giving undue weight to isolated passages.  It is also for the accused to show that his words were harmless and his motives innocent. 

Interestingly, the United Kingdom, from where we derive this colonial legislation, has itself deleted Sedition from its Statute books and one of the reasons for such deletion is on account of the fact that the British legislators felt that “having an unnecessary and overbroad common law offence of sedition, when the same matters are dealt with under other legislation, is not only confusing and unnecessary, it may have a chilling effect on freedom of speech and sends the wrong signal to other countries which maintain and actually use sedition offences as a means of limiting political debate.” The United States still has Sedition as an offence although it is very narrowly construed.

Perhaps taking note, in August 2018, the Law Commission of India issued a Consultation Paper on Sedition soliciting suggestions from a cross-section of society with a view to examine the pros and cons of the legal provision. Some notable questions on which responses are solicited include, the extent to which we citizens enjoy the right to offend and at what point does the right to offend qualify as hate speech? Response is also sought on whether all the existing Statutes cover the various offences against the individual and/or the offences against the society and therefore will reducing the rigour of Section 124A or repealing it be detrimental or beneficial, to the nation? 

Given these developments and till such time that Sedition is on our Statute books, India needs to follow an effect-based, which examines the effects of the Seditious text, rather than a content-based test, which reviews the text alone. Following this principle, along with ways and measures to check the enforceability, sometimes wrongful, and implementation of the law of Sedition is the current call of duty. Jai Hind!

Satvik Varma is a counsel based in New Delhi. A graduate of Harvard Law School, he’s also licensed to practice in New York.