DIS­SENT AND SEDI­TION

India Today - - UPFRONT - By San­jay Hegde San­jay Hegde is a des­ig­nated se­nior ad­vo­cate of the Supreme Court

Shehla Rashid, JNU stu­dent leader and as­pir­ing politi­cian from Kash­mir, is the lat­est tar­get of the sedi­tion law. Her tweets on al­leged army ex­cesses in Kash­mir prompted Supreme Court lawyer Alakh Alok Sri­vas­tava to file a com­plaint with the Delhi Po­lice. Given that the com­plaint cites a cog­nis­able of­fence un­der the In­dian Pe­nal Code, Rashid risks ar­rest for speak­ing her mind on Twit­ter. In an­other, fol­lowup tweet, the com­bat­ive Rashid says: ‘Tell me that it is not a democ­racy any­more, and I prom­ise that I won’t crit­i­cise the gov­ern­ment’s ac­tions.’

Just a day ear­lier, on Septem­ber 7, Jus­tice Deepak Gupta of the Supreme Court said in a public lec­ture: “Crit­i­cism of the ex­ec­u­tive, the ju­di­ciary, the bu­reau­cracy or the armed forces can­not be termed sedi­tion. In case we at­tempt to sti­fle crit­i­cism of the in­sti­tu­tions, whether it be the leg­is­la­ture, the ex­ec­u­tive or the ju­di­ciary or other bod­ies of the state, we shall be­come a po­lice state in­stead of a democ­racy, and this, the found­ing fa­thers never ex­pected this coun­try to be.” He added, “I think our coun­try, our Con­sti­tu­tion and our na­tional em­blems are strong enough to stand on their own [feet] with­out the aid of the law of sedi­tion”.

Sedi­tion, as a crime, is easy to al­lege, hard to pros­e­cute and al­most cer­tain to not end in con­vic­tion. Sedi­tion ac­quired its crim­i­nal def­i­ni­tion in El­iz­a­bethan Eng­land, as a crime short of trea­son but as a ‘no­tion of in­cit­ing by words or writ­ings dis­af­fec­tion to­wards the state or con­sti­tuted author­ity’. In 1870, it found its way into the In­dian Pe­nal Code, 1860—as Sec­tion 124A. Bri­tish In­dia then faced an in­cip­i­ent Wa­habi threat. Sub­se­quently, it proved to be a use­ful tool for the colo­nial ad­min­is­tra­tion to keep or­der among ‘restive na­tives’. The sec­tion was used, on dif­fer­ent oc­ca­sions, to con­vict Bal Gan­gad­har Ti­lak and Gandhi.

Doubts arose about the con­sti­tu­tion­al­ity of the sedi­tion law af­ter the Con­sti­tu­tion of In­dia, in 1950, guar­an­teed free­dom of speech as a fun­da­men­tal right. While pi­lot­ing the first amend­ment to the Con­sti­tu­tion—which im­posed ‘rea­son­able re­stric­tions’ on free speech—Jawa­har­lal Nehru said: “So far as I am con­cerned, that par­tic­u­lar Sec­tion [124A IPC] 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 we might pass. The sooner we get rid of it, the bet­ter.”

In 1962, a Supreme Court con­sti­tu­tion bench read down the sedi­tion sec­tion in Kedar Nath Singh: “The pro­vi­sions of the sec­tions read as a whole, along with the ex­pla­na­tions, make it rea­son­ably clear that the sec­tions aim at ren­der­ing pe­nal only such ac­tiv­i­ties as would be in­tended, or have a ten­dency, to cre­ate dis­or­der or dis­tur­bance of public peace by re­sort to vi­o­lence… . It is only when the words, writ­ten or spo­ken, etc. which [sic] have the per­ni­cious ten­dency or in­ten­tion of cre­at­ing public dis­or­der or dis­tur­bance of law and or­der that the law steps in to pre­vent such ac­tiv­i­ties in the in­ter­est of public or­der. So con­strued, the sec­tion, in our opin­ion, strikes the cor­rect bal­ance be­tween in­di­vid­ual fun­da­men­tal rights and the in­ter­est of public or­der.”

The Supreme Court’s bal­anc­ing act has, how­ever, been largely ig­nored by ad­min­is­tra­tors. Many a per­son whose in­con­ve­nient views sparked out­rage among ad­min­is­tra­tors and the po­lice has been charged un­der 124A—or Sec­tion 153A or 295A (pe­nal­is­ing in­sults based on re­li­gious or other iden­ti­ties). The threat of life im­pris­on­ment af­ter trial, or even some im­pris­on­ment be­fore bail, has a chill­ing ef­fect on free speech, and would de­ter all but the most ob­du­rate dis­senter.

How­ever, most pros­e­cu­tions un­der 124A are with­drawn or fail le­gal scru­tiny in a higher court. Rashid is only the lat­est tar­get of a harsh law, sought to be ap­plied se­lec­tively, with no real prospect of a fi­nal con­vic­tion. A sim­i­lar case against her univer­sity com­pa­triot, Kan­haiya Ku­mar, has not taken off af­ter the Delhi gov­ern­ment re­fused to sanc­tion the pros­e­cu­tion.

The ob­so­lete, colo­nial-era sedi­tion law, aban­doned even in its coun­try of ori­gin, needs to be jet­ti­soned. It can scarcely be used to sup­press the voice of a mil­len­nial gen­er­a­tion raised in the in­ter­net age. ■

“Crit­i­cism of the ex­ec­u­tive, ju­di­ciary, bu­reau­cracy or the armed forces can­not be termed sedi­tion. If we sti­fle crit­i­cism, In­dia shall be­come a po­lice state”

—Deepak Gupta Supreme Court Jus­tice

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