22 January 2019
Not by world Alone
Source: By Soli J. Sorabjee: The Indian Express
Sedition was aptly described by Gandhiji “as the prince of the Indian Penal Code” (IPC). Regrettably, it has become the king of the IPC as evidenced by the indiscriminate manner in which charges are filed against an ex-president of the JNU Student’s Union and former students for allegedly “raising and supporting anti-national slogans”.
What is sedition, which is enacted by Section 124-A of the IPC? According to the Privy Council, it meant any statement that caused “disaffection”, namely, exciting in others certain bad feelings towards the government, even though there was no element of incitement to violence or rebellion.
The Constituent Assembly debates shed useful light on the subject of sedition. In the Draft Constitution, one of the heads of restrictions proposed on freedom of speech and expression was “sedition”. In the heyday of British colonialism, the sedition law was frequently invoked to crush the freedom movement and to incarcerate prominent nationalist leaders like Bal Gangadhar Tilak, Gandhiji, Jawaharlal Nehru and others. K M Munshi opposed the inclusion of “sedition” as a head of restriction and moved an amendment for its deletion.
In the course of the debates, Munshi urged that “now that we have a democratic government, a line must be drawn between criticism of government which should be welcome and incitement to violence which would undermine security or order on which civilised life is based. As a matter of fact the essence of democracy is criticism of government. The party system, which necessarily involves advocacy for the replacement of one government by another, is its only bulwark; the advocacy of a different system of government should be welcome because that gives vitality to democracy.”
The founding fathers agreed with Munshi and deliberately omitted “sedition” as one of the permissible grounds of restriction on freedom of speech and expression under Article 19(2). Sedition remained as a criminal offence in the IPC and provides inter alia for a sentence of life imprisonment and fine upon conviction. How did courts in India construe ‘sedition’? The Federal Court of India presided over by the distinguished chief justice, Maurice Gwyer, ruled that the sedition law is not to be invoked “to minister to the wounded vanity of government. The acts or words complained of must either incite disorder or must be such as to satisfy reasonable men that is their intention or tendency”.
Thereafter, our Supreme Court in its landmark decision pronounced in 1962 in Kedarnath vs. State of Bihar dissented from the view of the Privy Council and adopted the view of the Federal Court. The Court ruled that mere criticism of the government or comments on the administration, however vigorous or pungent or even ill-informed, did not constitute sedition. The Supreme Court limited the application of Section 124A (sedition) to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. Therefore, incitement to violence is the essential ingredient of the offence of sedition (emphasis added).
In 1995, the Supreme Court in the case of Balwant Singh vs. State of Punjab applied the principle in Kedarnath’s case to the prosecution of certain persons who raised the following slogans:
One, “Khalistan Zindabad”; two “Raj Karega Khalsa” and three, “Hinduan Nun Punjab Chon Kadh Ke Chhadamge, Hum Mauka Aya Hai Raj Kayam Karan Da”.
The Court ruled that in view of the prosecution evidence that the slogans were raised a couple of times and that the slogans did not evoke any response from any other person of the Sikh community or reaction from people of other communities, raising of such casual slogans a couple of times without any other act whatsoever, did not justify prosecution for sedition and Section 124-A could not be invoked.
Thereafter in 2003, in the case of Nazir Khan vs. State of Delhi the Supreme Court emphasised that: “It is the fundamental right of every citizen to have his own political theories and ideas and to propagate them and work for their establishment so long as he does not seek to do so by force and violence or contravene any provision of law and that the mere use of the words ‘fight’ and ‘war’ in their pledge did not necessarily mean that the society planned to achieve its object by force and violence.”
One wonders what is meant by anti-national slogans. Slogans, however critical or censorious of government, are not anti-national and per se do not amount to sedition. If the slogans had stated that the Indian state is tyrannical and it is necessary to overthrow it, that could possibly attract Section 124-A. It is shocking that Section 124-A has often been misused by ill-informed and over-enthusiastic prosecuting agencies. However, that is no ground for repealing Section 124-A.
Invocation of the section should only be in cases of slogans or statements which incite violence and have a manifest tendency to create public disorder. The right remedy is to educate our law enforcement agencies and impress upon them that incitement to violence is the indispensable pre-requisite for invoking Section 124-A. Our state rests on solid foundations, which cannot be disturbed by ill-tempered or pungent or stupid slogans. Misuse of the sedition law should attract appropriate penalties for law enforcement agencies coupled with a provision for compensation to the injured party.