124A: Has Bri­tish Raj Re­turned?

How 21st cen­tury In­dian gov­ern­ments have be­come Ma­caulay’s best dis­ci­ples

The Times of India (New Delhi edition) - - An Ecstasy Of Ideas - Pa­van K Varma

The Bihar po­lice has done well to dub the com­plaint of sedi­tion as “ma­li­ciously false” against 49 pub­lic spir­ited cit­i­zens, in­clud­ing Mani Rat­nam, Shyam Bene­gal, Anurag Kashyap, Aparna Sen, Shubha Mud­gal and Ra­machan­dra Guha, who wrote to Prime Min­is­ter Naren­dra Modi in July this year ex­press­ing con­cern about the in­creas­ing in­ci­dents of lynch­ing. But it is in­ex­pli­ca­ble that the court in Muzaf­farpur took cog­nizance of the com­plaint. Equally, it is very wor­ry­ing that this out­dated pro­vi­sion on sedi­tion still re­mains in our law books.

Sec­tion 124A of the In­dian Pe­nal Code (IPC), which deals with sedi­tion, was drafted by Thomas Babing­ton Ma­caulay and in­cluded in the IPC in 1870. It is truly a colo­nial relic, and should have been junked decades ago. The ex­act pro­vi­sion is a clas­sic ex­am­ple of de­lib­er­ately am­bigu­ous draft­ing, with a view to sti­fling dis­sent and de­bate. The clause reads: “Whoso­ever by words, ei­ther spo­ken or writ­ten, or by signs, or by vis­i­ble in­ter­pre­ta­tion, 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” shall be pun­ished with life im­pris­on­ment.

Ma­hatma Gandhi called Sec­tion 124A “the prince among the po­lit­i­cal sections of the IPC de­signed to sup­press the lib­erty of the cit­i­zen”. Jawa­har­lal Nehru said that the pro­vi­sion was “ob­nox­ious” and “highly ob­jec­tion­able”, and “the sooner we get rid of it the bet­ter”. But in July 2019 Nityanand Rai, min­is­ter of state for home af­fairs, told the Ra­jya Sabha that “there is no pro­posal to scrap the pro­vi­sion un­der the IPC deal­ing with the of­fence of sedi­tion. There is a need to re­tain the pro­vi­sion to ef­fec­tively com­bat anti-na­tional, se­ces­sion­ist and ter­ror­ist el­e­ments.”

The real prob­lem arises here. What ex­actly is anti-na­tional, and se­ces­sion­ist, and who ex­actly is a ter­ror­ist? The man­ner in which gov­ern­ments have been la­belling peo­ple sedi­tious is lu­di­crous to say the least.

Con­sider these ex­am­ples. In Septem­ber 2012 Aseem Trivedi, a car­toon­ist in Mum­bai, was ar­rested for sedi­tion for a se­ries of car­toons against cor­rup­tion. In Fe­bru­ary 2016 JNU stu­dent union pres­i­dent Kan­haiya Ku­mar was ar­rested for sedi­tion, but re­leased later on in­terim bail for want of con­clu­sive ev­i­dence. In Au­gust 2016 the in­ter­na­tion­ally re­spected or­gan­i­sa­tion Amnesty In­ter­na­tional was ac­cused of sedi­tion. The po­lice com­plaint was filed by an ac­tivist of the Akhil Bhar­tiya Vid­yarthi Par­ishad (ABVP), an RSS af­fil­i­ated or­gan­i­sa­tion.

In Septem­ber 2018 Divya Span­dana, then so­cial media chief of the Congress party, was booked for sedi­tion for ac­cus­ing PM Modi of cor­rup­tion. In Jan­uary this year a sedi­tion case was reg­is­tered against 80 year old Cam­bridge scholar and lead­ing As­samese in­tel­lec­tual, Hiren Gosain, for re­marks against the

In the year that we are cel­e­brat­ing the 150th birth an­niver­sary of Ma­hatma Gandhi with so much fan­fare, this grow­ing in­tol­er­ance to crit­i­cism is deeply sad­den­ing

Cit­i­zen­ship Amend­ment Bill.

Sud­hir Ku­mar Ojha, the lo­cal ad­vo­cate in Muzaf­farpur who filed the com­plaint against the 49 cit­i­zens, is a se­rial lit­i­gant. In his com­plaint he said that the let­ter these cit­i­zens wrote sup­ported “se­ces­sion­ist ten­den­cies” and “tar­nished the im­age of the coun­try and u nder­mined the im­pres­sive per­for­mance of the Prime Min­is­ter”. The let­ter, in fact, was not se­ces­sion­ist at all. It spoke about the im­me­di­ate need to take steps to stop the lynch­ings of Mus­lims and Dal­its, and to pre­vent the slo­gan ‘Jai Shri Rama’ from be­com­ing “a provoca­tive war cry”. Such a cri­tique is natural in a democ­racy. If it annoys Ojha, so be it. But – as the Bihar po­lice is now say­ing – it is cer­tainly not sedi­tious.

The ques­tion then is why Surya Kant Ti­wari, the chief ju­di­cial mag­is­trate at a Muzaf­farpur court, ad­mit­ted the pe­ti­tion. The Bihar po­lice can only rec­om­mend to him that the case is to­tally friv­o­lous and needs to be dropped. Is the mag­is­trate not aware that the higher ju­di­ciary has cat­e­gor­i­cally said that any ex­pres­sion must in­volve in­cite­ment to im­mi­nent vi­o­lence for it to amount to sedi­tion? Does he not know that Ar­ti­cle 19 of the Con­sti­tu­tion guar­an­tees free­dom of speech and ex­pres­sion as a fun­da­men­tal right? Is he obliv­i­ous to the fact that in 2018 the SC had said that “dis­sent is the safety valve of a democ­racy. If dis­sent is not al­lowed, then the pres­sure cooker may burst”?

For ju­di­cial officers to show such abysmal ig­no­rance both about the law and what su­pe­rior courts have pro­nounced, is un­par­don­able. It should prompt the higher ju­di­ciary to se­verely rep­ri­mand him.

The fact of the mat­ter is that the dra­co­nian sedi­tion law is be­ing used reck­lessly, in­dis­crim­i­nately, puni­tively and pur­pose­fully against any­body or any in­sti­tu­tion that has the temer­ity to dis­agree with the rul­ing es­tab­lish­ment, and has the courage to pub­licly voice such an opin­ion. This de­lib­er­ate mis­use is an au­gury of an au­thor­i­tar­ian state that looks upon all dis­sent as some form of anti-na­tional ac­tiv­ity, and wishes to live in an echo cham­ber where all opin­ion must be con­gru­ent with its own self-es­ti­ma­tion.

In the year that we are cel­e­brat­ing the 150th birth an­niver­sary of Ma­hatma Gandhi with so much fan­fare, this grow­ing in­tol­er­ance to crit­i­cism is deeply sad­den­ing. Gand­hiji was a flam­boy­ant dis­senter, and un­re­pen­tantly demo­cratic. We can­not go through the rit­u­als of pay­ing tribute to him, and yet re­main mute spec­ta­tors to the un­der­min­ing of democ­racy and the sacro­sanct right to dis­sent within it.

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