Sedition A flash-back to the Imperial rule

The last few weeks have seen the Supreme Court uphold the independence of the media by refusing to lay down any guidelines. On the other, this very independence of the media was attacked when Pune-based cartoonist Aseem Trivedi was arrested and charged with sedition..by Saumya Ramakrishnan.The last few weeks have been an irony of sorts in the world’s largest democracy, and as some say, the most dynamic one as well. On the one hand, the Supreme Court of India upheld the independence of the media by refusing to lay down broad guidelines for the reporting of sensitive issues by the media (only empowering Courts to temporarily ban the media from reporting the case). On the other, this very independence of the media was attacked when Pune-based cartoonist Aseem Trivedi was arrested and charged with, amongst other offences, sedition for undermining the democracy of the country through his cartoons..This year in particular has seen a mirage of gagging moves by the government – arrest of a student and farmer in West Bengal who questioned the ruling chief minister, the increasing enthusiasm amongst some members of the political fraternity to regulate the social media, amongst others. And the most recent incident was the filing of mass sedition cases against 7000 villagers for protesting against the Kudankulam nuclear plant in Tamil Nadu. Hence, there wasn’t a “novelty factor” (pun intended) in Aseem’s arrest..However, criticism flew in from all corners – from activists and lawyers – against the hasty arrest of someone who is now seen as the new voice of democracy. While some see the move as the lowest ebb of intolerance shown by the government, others see it as a manifestation of futility as his cartoons are more freely available and viewed than they were before his arrest. It has almost become a saga of a hero being made out of a hitherto unknown person. There were also comments about his ignorance about the Constitution, his cartoons being in bad taste and him reveling in the attention that he was garnering from the media..The question here is not about the intolerance of the government towards criticism or the intellect behind his cartoons (or the lack of it). It is the blatant misuse of Section 124-A of the Indian Penal Code (IPC), 1860 that set the ball rolling for the days to come..Section 124-A defines the offence of ‘Sedition’ and provides as follows: “Whoever, 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 India….” It is further provided that the word ‘disaffection’ in this section includes disloyalty and feelings of enmity. The section on sedition was first introduced in the IPC in 1870 to counter the increasing Wahabi activities between 1863 and 1870. The framework of this section was imported from various sources- the Treason Felony Act (operating in Britain), the common law of seditious libel and the English law relating to seditious words..Before 1947, this provision was used by the British to quell the Indian freedom struggle and retain imperial power and several participants of the struggle were charged with sedition. The first known instance of the use of this draconian weapon by the British was against Jogendra Chandra Bose, editor of “Bangobasi” in 1891. Bose, in his article, had criticized the Age of Consent Bill saying it was dangerous to religion and that this legislation was being forced down the throats of Indians. Though the proceedings came to an end in the light of the apology he tendered, he was accused of crossing the limits of legitimate criticism and inciting religious feelings..Subsequently, Lokmanya Tilak was also tried under this section when a young revolutionary killed two English women with a bomb detonated with the intention to kill an English officer. Tilak criticized the killing but blamed the British government for bringing the situation in the country to a brink, thus instigating the revolutionaries. A young Mohammad Ali Jinnah, defending Tilak, asked the judge to define ‘disaffection’ for the purpose of this section to which the judge said, ‘anything which is not affection is disaffection’. Later, Tilak was convicted and sentenced to six years imprisonment..Justice James Strachey, who was invited to preside over Tilak’s case, interpreted the term ‘disaffection’ as including, hatred, contempt, dislike, enmity, hostility and any form of ill will towards the government. Subsequently, his interpretation found place in the IPC in the form of the 1898 amendment by addition of words ‘hatred’ and ‘contempt’ in the definition of sedition and including disloyalty and feelings of enmity..Mahatma Gandhi, when he was being tried for sedition in 1922 for three articles published in the magazine Youth India, commented, “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. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”.Post independence, this provision, instead of being repealed, has been used by the government to silence critics, journalists, human rights activists, etc. One of the most high profile and controversial victims of this section is Dr. Binayak Sen, who has been charged with sedition for allegedly being a conduit between Naxals, helping them in their fight against the government..The section uses terms like hatred, contempt and disaffection which haven’t been clearly defined anywhere, and hence have been open to various sorts of interpretation. And more often than not, it has been used to include any criticism directed towards the government. No wonder then that this provision has been the subject matter of disputes in the courts of India. In fact, in the fifties, the High Courts of some states even struck the sedition section of IPC as being unconstitutional..In Ram Nandan vs. State, the Allahabad High Court held section 124-A to be unconstitutional citing that the section restricts freedom of speech in disregard of whether the interest of public order or the security of the state is involved and is capable of striking at the very root of the Constitution which is free speech. However, the Supreme Court overturned the decision of the Allahabad High Court in Kedarnath Singh v State of Bihar and held that section 124-A was constitutional. It was held that “(this section) should be construed as to limit their application to acts involving intention or tendency to create disorder or disturbance of law and order, or incitement to violence.” The Supreme Court added that if used arbitrarily, the sedition law would violate freedom of speech and expression guaranteed by the Constitution under Article 19. However, even after this judgment of the Supreme Court, the provision continues to be used irrespective of whether the alleged seditious act or words constitute a tendency to cause public disorder or incitement to violence..Also, sedition in IPC is included under the category of ‘Offences against the State’, with the maximum punishment being that of life imprisonment, which is more severe than that of rioting and other offences affecting public tranquility. The disparity in the punishment makes the offence even harsher and causes more turmoil to people charged under it..India remains one of the very few countries, and even fewer democracies, where sedition laws still exist and are misused. A look at the sedition laws of other democracies is essential to understand where India stands in the threshold of freedom of speech. The United Kingdom repealed its sedition law in 2010. The law, as it read before the repeal, punished any act of disaffection done with the intention to incite violence or disrupt public order, which did not find place in the Indian law of sedition and which was ultimately supplied by judicial interpretation in Kedarnath’s case. Repealing the law, Justice Minister of UK, Claire Ward, said, “Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today. The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom. Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.”.However, even though Indian laws are similar to the ones in England, India has not followed suit in this case. Similarly, New Zealand had a history of violation and abuse of sedition provisions. Sedition (previously section 83 of the Crimes Act, 1961 of New Zealand) was repealed in 2007 as it was observed that other criminal provisions are sufficient to address some elements of sedition, such as incitement to violence..On the contrary, in the United States of America, though the sedition laws have not been repealed, the court’s interpretation of it has severely limited the cases in which it is used. It has been held that any form of advocacy of a doctrine or violence in abstract terms without resulting in immediate lawless action is protected under the First Amendment. Malaysia, which is known to have one of the most stringent laws on sedition, punishing even possession of seditious material without lawful excuse, is also considering a repeal of the provision..This is not to say that repeal is the only solution. Even in the absence of a repeal of the sedition provision, the interpretation of the Supreme Court is sufficient to shield genuine criticism of journalists from attracting a charge under the section. But, as seen in Aseem’s case, the lower courts and police authorities have shown a tendency to not follow the law laid down by the apex court. Article 19(1)(a) of the Constitution is being held at bay at the cost of this provision and as Mahatma Gandhi pointed out, continues to be the ‘prince of the political sections of the IPC’..However, all hope is not lost in India with regards to the law of sedition with Justice D.Y. Chandrachud and Amjad Sayyed coming down heavily on Mumbai police for charging Aseem with sedition. The Division Bench even questioned them as to whether they have even read Section 124-A, while hearing a public interest litigation filed by a lawyer in Mumbai seeking an unconditional release of Aseem and quashing of the sedition charge against him. During the course of the hearing, the Bench made an observation which, at least now, needs to get the Parliamentarians thinking on repealing the sedition laws: “Today you arrested a cartoonist. Tomorrow it will be a filmmaker or a screenplay writer. We live in a free society and enjoy freedom of speech and expression. Sedition is a pre-independence [law].”.It comes as an anomaly of sorts that on the one hand the country is progressing towards becoming a significant economic power and on the other; laws like this pull the country and its progress several notches lower. There are no two ways about the fact that every freedom has its restrictions, including the freedom of speech, however, there can be no justification for the existence of any provision in the Indian legal system that penalizes peaceful dissent and legitimate criticism. There are provisions in the IPC itself, like section 153-B (which punishes any imputation prejudicial to national integrity) and also in other Acts, such as the Official Secrets Act and Contempt of Courts Act which penalizes journalists when their acts or words exceed the limits of legitimate criticism. Till the time sedition laws of this nature exist in the statute books of the country, the threat to democracy will not cease to exist..Saumya Ramakrishnan obtained her Bachelors in Mass Media with a specialization in Journalism from Jai Hind College, Mumbai. In August 2009, she was selected for an exchange program in International Journalism from Carelton University in Canada. She is currently pursuing her LLB from Government Law College, Mumbai.