124A: Has British Raj Returned?
How 21st century Indian governments have become Macaulay’s best disciples
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 Equally, it is very worrying that this outdated provision on sedition still remains in our law books.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.